Opinion
B300370
06-25-2020
BORIS PETER LEBID-JURTSCHYK, Appellant, v. KIMBERLY ANN K. LEBID-JURTSCHYK, Respondent.
Lisa F. Rosenthal for Appellant. Joel S. Seidel for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. PD061943) APPEAL from an order of the Superior Court of Los Angeles County, Jonathan L. Rosenbloom, Judge. Affirmed. Lisa F. Rosenthal for Appellant. Joel S. Seidel for Respondent.
INTRODUCTION
In a dissolution action, Boris Lebid-Jurtschyk and Kimberly Lebid-Jurtschyk disagreed about several details relating to the sale of their residence. After an ex parte hearing, a noticed hearing, and the submission of additional evidence, the trial court ordered Boris to pay Kimberly $31,500 in sanctions under Family Code section 271, finding that the actions of Boris and his attorney frustrated settlement efforts and added to the cost of the litigation. Boris appealed.
All further statutory references are to the Family Code unless otherwise indicated.
We affirm. Boris has not demonstrated that the trial court abused its discretion in awarding sanctions or in determining the amount of the sanctions award.
FACTUAL AND PROCEDURAL BACKGROUND
Boris and Kimberly were married in 1993 and separated in 2016. In their dissolution action, Boris was represented by attorney Lisa F. Rosenthal, and Kimberly was initially represented by attorney Veronica R. Woods. Much of this dispute centers on the parties' disagreements relating to the sale of their residence. The information below was included in the documents the parties submitted with their filings in the trial court, and does not appear to represent the entirety of the communication on the relevant issues.
A. The May 2018 stipulation
On May 2, 2018, Woods sent Rosenthal a letter by fax, stating in part, "We propose the parties sell the [residence]. Enclosed is a Stipulation and Order reflecting the same. If your client is in agreement, kindly execute and return to our office." The attached stipulation stated that the parties shall list and sell the residence at a mutually agreed-upon price, using a mutually agreed-upon realtor. It also included provisions for resolving differences regarding the listing and sale. For example, if the listing agent recommended that the listing price be lowered and the parties disagreed, "the parties shall each appoint a broker" to advise them, and "if the parties still cannot agree, then a neutral third broker shall decide. If this dispute continues, it shall be resolved by ex parte application" to the court. The stipulation also required the parties to sign all documents "necessary to effectuate" any sale within two days.
On May 16, 2018, Rosenthal sent Woods an email stating, "Sorry for the delay was out of town for my daughter's graduation." Attached to the email was the faxed version of the May 2 stipulation, signed by Boris on May 11 and by Rosenthal on May 16, 2018.
On May 24, 2018, a paralegal in Woods's office sent Rosenthal an email stating in part, "It is our understanding that the parties have agreed to list the [residence] for sale with Lisa Gr[a]y of Pinnacle Estate Properties and they have agreed to a listing price. Attached is the revised Stipulation reflecting their agreement. Please review the revised Stipulation and, if it meets your approval, please return the executed Stipulation to our office." The attached stipulation was largely identical to the earlier version, but included the name of the real estate agent and the listing price for the residence: $860,000.
The email is missing the "To" line and date, but "5-31-18" is handwritten on the page. However, a follow-up email appears to include the cut-off "To" line and date of this email, stating that it was sent May 24, 2018.
On June 1, 2018, Woods's assistant emailed Rosenthal again, stating, "We are following up on the revised Stipulation re Sale of Residence which was emailed to you last Thursday. Please advise as to the status of signing and returning that to us so we may move forward with listing the house for sale."
On June 27, 2018, Woods emailed Rosenthal and stated, in part, "The parties have jointly agreed to sell the house. The parties are working with a realtor and the house is on the market. We did not receive a response to our proposed house-sale Stipulation." No responses to these June 2018 emails are included in the record on appeal.
B. August 2018 settlement agreement
On August 13, 2018, the parties went to court for a trial on the issues upon which they had not already reached an agreement. The court ordered the parties to confer. After conferring, the parties stated that the only issue outstanding was tracing approximately $145,000 of Kimberly's separate property. The nature of the dispute is not relevant to the appeal, but in general, the parties disagreed about whether the $145,000 was used to purchase the residence, and therefore whether Kimberly was entitled to reimbursement upon the sale of the residence. After a long discussion about proof and documentation, the court went off the record without making a clear ruling.
The same afternoon, Boris and Kimberly signed a settlement agreement that stated in part, "The court finds that from the net sales of the house proceeds, [Kimberly] to receive $100,000 and [Boris] to receive $45,000. Balance of the sales proceeds to be divided evenly between the parties."
In November 2018, Kimberly filed a substitution of attorney form. She replaced Woods with The Reape-Rickett Law Firm, and would eventually be represented by Donald R. Klahs of that firm.
C. Settlement agreement RFO
On February 8, 2019, Kimberly filed a request for order (RFO) seeking to set aside the August 13, 2018 settlement agreement under Code of Civil Procedure section 473, subdivision (b). Kimberly contended that the division of the $145,000 did not accurately reflect any finding made by the court. She stated that she began questioning her former attorney, Woods, about the settlement agreement the following day, but Woods did not address the issue. Kimberly retained new counsel as a result. Hearing on the motion to set aside the settlement agreement was set for March 28, 2019.
Boris opposed the motion. Boris asserted in a declaration that on August 13, 2018, the parties had reached a settlement regarding the $145,000, reduced it to writing, and signed it. He asked the court to adopt the settlement agreement and enter a judgment.
D. Real estate RFO and ex parte request to shorten time
On February 18, 2019, Rosenthal emailed Kimberly's attorneys; Klahs had not yet been assigned to the case. Rosenthal's email stated that the parties needed to resolve issues regarding the sale of the residence, and continued, "As you know the listing agreement with the current broker, chosen by your client[,] has expired." Rosenthal suggested three new real estate agents and asked that Kimberly choose one. On February 20, Rosenthal emailed Kimberly's counsel again, including the February 18 email, and stating only, "Am I going to get a response to these emails?" On February 21, Rosenthal emailed for a third time, stating, "Again, am I going to get a response to my emails?" After discussing an upcoming court date, she continued, "[W]e need to retain a new realtor for the community home. Please respond to my email on this issue. If I do not get a response I will file an ex parte on this matter and seek attorney fees and sanctions." Boris later stated in a declaration that Kimberly's attorneys never responded to these emails.
On March 22, 2019, Kimberly filed an RFO to give her "authority over all aspects of the sale" of the residence. She also asked for an ex parte order shortening time, so the matter could be heard at the same time as the settlement agreement RFO, scheduled for March 28. Klahs told Rosenthal in an email on March 21, "Obviously you will need time to respond to this new RFO if the court grants the consolidation then both matters will be heard together at a later date." Klahs asked Rosenthal to "consent to the consolidation and provide me with hearing dates acceptable to your calendar." Klahs stated in his declaration that Rosenthal "refused."
In support of the RFO, Kimberly asserted that Boris had breached his fiduciary duties under sections 1100, subdivision (e) and 1101, subdivision (a), which bar a spouse from impairing a community asset. In her attached declaration, Kimberly stated that "conflicts have arisen" between her and Boris regarding the sale of the home, and "court intervention is required." Kimberly stated that in May 2018, her prior attorney, Woods, sent Rosenthal the stipulation regarding selling the house, but "there was no response." She stated that although Boris verbally agreed to the sale of the house, "he refused to sign any proposed stipulation and order and required that the home be listed for sale at the unrealistic price of $860,000." Kimberly listed several issues with the property in support of her contention that the listing price was unrealistic, such as its location near a busy street, damaged wood floors, and a damaged fence bordering a neighboring property. She stated that she wanted to list the property for $849,950, but Boris was "adamant" that the listing price be $860,000. She also said that there had been several offers on the house below asking price, some negotiations, and one accepted offer, but the sale fell through when the buyer failed to qualify. Kimberly stated that Boris refused to agree on concessions and failed to respond to communications regarding needed repairs, and these actions were to blame for some of the failed negotiations.
Kimberly asked the court for an order giving her sole control over the sale of the house, or in the alternative, to enter an order setting parameters similar to those in the May 2018 stipulation, such as requiring parties to sign documents within 24 hours. She contended that Boris, "as the violating party," was required to pay her attorney fees, because he "cannot justify his failure to comply with court orders and the parties' agreement that requires them to sell the community home." She requested $28,030.00 in attorney fees.
Kimberly also asked for sanctions under section 271, which states in part, "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." (§ 271, subd. (a).) Kimberly asserted that Boris's actions "directly caused more litigation which has resulted in increased fees and costs." She asked that sanctions be imposed "in an amount that would ensure his cooperation in the future." She also requested "all of my attorney fees and court costs for this proceeding," because Boris had "frustrated the execution of our agreement to sell our home and his actions promote more litigation. Fees for this request exceed $28,000."
Klahs also submitted a declaration, in which he stated that on March 5, 2019, he spoke with Rosenthal regarding the possibility of a stipulation regarding the sale of the residence, including an agreement to re-enlist Gray as the sellers' real estate agent. Klahs stated, "In response, Ms. Rosenthal informed me that her client would no longer agree to Linda Gray as the listing agent and there was no need at the present time for the parties to enter into a stipulation and order regarding the sale of the property."
Klahs attached firm billing records "from date of hiring through March 18, 2019," which showed fees incurred "as a result of preparing [Kimberly's] Request for Order for control over the parties family residences [sic], [Kimberly's] request for order shortening time and consolidation, and [Kimberly's] request for Attorney's fees and sanctions under Family Code Section . . . 271." Klahs stated that Kimberly had paid the firm nearly $27,000 to date.
Boris filed a written opposition to the ex parte on March 22, 2019, addressing the substance of Kimberly's contentions. In a declaration, he noted that Gray had been the real estate agent for the home for 10 months and had been unable to sell the home. Boris stated that Rosenthal contacted Kimberly's counsel in February to propose three new real estate agents to sell the residence, but "we never received a response other than this ex parte." Boris felt the home should be sold as-is, noted that two potential sales had fallen through due to issues with the buyers, and stated that he did not see the need to reduce the listing price. He also asked for sanctions of $5,000 under section 271, because Kimberly filed an ex parte instead of responding to Rosenthal's emails about changing real estate agents.
The minute order for the ex parte hearing on the morning of March 22, 2019 stated, "The court grants the parties['] stipulation to continue this matter to May 16, 2019." The court also rescheduled the hearing on Kimberly's settlement agreement RFO to May 16.
Later the same day, Klahs sent an email to Rosenthal stating, "Your client refuses to sign a stipulation to sell the home, to set the listing price at a realistic number, to work with the neighbor to get the fence fix[ed], to accept the agent with the most expertise and in almost every way to cooperate with the sale. All of this has kept the house from selling for a year or so, as you readily admit. . . . I tried to get you and you[r] client to agree to a stipulation and order for the sale when we last talked but you refuse. How much more time and money do you and your client want us to wait and waste? [¶] A year? Two years? Or maybe just the next 3-4 months for a normal hearing date. [¶] To me, your continued refusal to enter into a standard stipulation for the sale speaks the loudest. Obstruction and delay is your obvious game plan."
Rosenthal responded in an email that stated, in part, "How can my client refuse to sign that which has never been presented to him[?] We have never been presented with a stipulation to sell the house."
Boris filed an opposition to Kimberly's real estate RFO on April 29, 2019, stating that instead of the order Kimberly requested, Boris should have exclusive control over the sale of the home. Boris also requested $5,000 in sanctions. In his attached declaration, Boris stated that he signed the May 2018 stipulation regarding the sale of the home, and attached the signed version. Boris also stated that two sales on the residence had fallen through, but not due to Boris's conduct—one buyer did not qualify, and the other terminated the sale after accepting a job in a different state.
In her reply brief, Kimberly argued that Boris could not "have it both ways." She pointed out that Rosenthal stated in her March 22, 2019 email to Klahs, "How can my client refuse to sign that which has never been presented to him[?] We have never been presented with a stipulation to sell the house." However, Boris then stated in his opposition that he did receive the stipulation in May 2018, and that he signed it. Kimberly said she never received the signed stipulation, and her attorney never informed her that Boris signed it. Kimberly also pointed out that Boris had never signed the revised stipulation agreeing to use Gray as the realtor and agreeing on the listing price. Kimberly asserted again that Boris had been uncooperative in dealing with issues regarding the sale of the property.
E. Hearing
At the hearing on May 16, 2019, the court and parties discussed the parties' disagreement about which real estate agent to use to sell the residence, and the court ordered that the parties continue to use Gray as the agent. Klahs suggested that the court employ a certain procedure to settle disagreements regarding issues involved in the sale. The court noted that the stipulation attached to the ex parte application included such a procedure.
Rosenthal pointed out that she and Boris signed that stipulation in May 2018. Klahs stated, "Throughout these proceedings I have asked counsel for [Boris] to enter into a stip and order. She has repeatedly refused." He continued, "I repeatedly asked her why she did not previously with her client enter into the exact stip and order you [the court] are looking at, which had been sent to her in May of 2018. She repeatedly told me she had never received it. She never once received anything. There was a revised stipulation, which is exactly the same as the one you are looking at. The only change was they put in the listing price. Also sent over. She also denied that." Klahs pointed out Rosenthal's March 22 email stating that she had never received a stipulation, and said, "So she's lied to me all the way through this. Now she says, oh, one did come over. Oh, we signed it. It is okay now."
The court then signed the original stipulation while on the bench; the parties and attorneys also signed it in court. The parties wrote, and the court signed, an additional order specifying that Gray would be the real estate agent, the agent compensation allowed, and other details regarding the sale.
Turning to Kimberly's request for attorney fees, Klahs stated that some of the fees requested arose from his review of the case file after he took over the case, because it "came to me with three boxes of material," and "[p]art of the $28,000 assuredly is my looking at three boxes of material." However, Klahs asserted that a "substantial part" of the fees arose from "trying to work with opposing counsel to get the agreement signed, coming in on an ex parte that was opposed, for an order shortening time in consolidation with the other motion, an ex parte the court granted."
Rosenthal noted that Kimberly was not requesting attorney fees under section 2030, but instead was asking for sanctions under section 271; the court agreed. Rosenthal asserted that Kimberly's request had not been properly noticed. She also noted that Klahs took the case and began billing after the parties had signed a settlement agreement, and "we have absolutely no definitive notice as to what actions . . . he is claiming sanctions for." After discussing her communications with Klahs, Rosenthal stated, "The issue of attorneys fees is inappropriately requested at this point under Family Code section 271, without proper motion detailing the list of what he claims my client should have done [and] didn't do."
Klahs responded that Kimberly's declaration "is sufficient to show the lack of cooperation in the entire sale process." He stated that a "large portion" of the fees were for him to "get up to speed" on the case, "[b]ut certainly there was a reasonable amount with respect to the ex parte, which was, I think, foolishly opposed." He continued, "[Rosenthal] could have consented to it. We could have just consolidated and picked a date. I was here waiting around to have that done."
The court stated that it was "highly, highly likely to award fees," and asked Klahs to submit a supplemental declaration. The court also granted Kimberly's settlement agreement RFO.
F. Supplemental declarations
In his supplemental declaration, Klahs asked that the court order Boris to pay "attorney fees and/or sanctions or both in the sum of $32,480." He stated that "all of the fees charged to [Kimberly], for this part of the case, were incurred as a direct result of the uncooperative conduct of the attorney for [Boris]. Which conduct I find to be obstructive in the extreme." Klahs stated that "[a]fter getting up to speed on this case," he spoke with Rosenthal about entering into a stipulation about selling the residence, but Rosenthal "continued to refuse to enter into a stipulation and order for the sale of the family residence." Klahs stated that he "saw little choice but to file an RFO."
Klahs stated that after he filed the ex parte application to shorten time, Rosenthal "sent two emails claiming that the ex parte procedure was somehow inappropriate." When Klahs appeared for the ex parte on March 22, he spoke at length with stand-in counsel for Rosenthal, Cecilia Jimenez. He stated, "I believe Ms. Jimenez then had a telephone conversation with Ms. Rosenthal and finally, just before the court heard the matter, consented to the order shortening time and to the consolidation." Klahs also stated that Rosenthal's "prior claims that she had never received a proposed stipulation from [Kimberly's] prior counsel were false." He further asserted that the signed stipulation must have been in Rosenthal's possession at the time she told Klahs there was no stipulation, because she included it with the opposition to the real estate RFO. Klahs continued, "Had she honestly acknowledged the proposed stipulation and order, [Kimberly] and I would have signed same and little if any of the work" relating to the real estate RFO would have been required.
In his response, Boris noted that in the real estate RFO Kimberly asked for sole control over the sale of the residence, but "[t]he court denied that request." Nevertheless, Kimberly was now asking for $32,480, despite her initial request in the RFO for $28,030. Boris stated that Kimberly had also not met the requirements of section 271, because she did not show evidence of meet-and-confer efforts. In addition, he claimed that Kimberly and her attorney did not respond to Boris's February 2019 communications regarding replacing Gray with a different real estate agent after Gray's contract expired, and the lack of communication led to increased litigation on the real estate issue.
Finally, Boris noted that Klahs stated that much of his billed time was spent getting up to speed on the case and communicating with Kimberly. Boris asserted that this time, before any meet-and-confer effort was made regarding the residence, could not reasonably be attributed to sanctionable conduct. Moreover, the attorney fees requested included time spent on the settlement agreement RFO, for which Kimberly did not request sanctions. Boris contended that at most, $3,500 of Klahs's time was attributable to the real estate RFO.
G. Ruling
The court imposed sanctions in a written ruling. It stated that Kimberly had requested fees and costs under sections 2030 and/or 271 "for attempts to resolve differences over the listing for sale of the parties' residence, disputes which predated Mr. Klahs's representation of [Kimberly], for the bringing of an ex parte to consolidate the two hearing dates and for the preparation and hearing of the" real estate RFO. The court noted that Klahs said Rosenthal "refused to cooperate regarding the consolidation of the two hearing dates until he had spent time at court waiting for his ex parte to be ruled on. . . . Moreover, it turned out that Ms. Rosenthal had in her possession a proposed stipulation and order from [Kimberly's] prior counsel which covered the very subject of the RFO (which she said she never received). Mr. Klahs states that, with cooperation from Ms. Rosenthal, the fees and costs he requests would not have been incurred. [¶] The Court agrees. The Court believes that Ms. Rosenthal's strategy and conduct falls squarely within the bounds of Family Code section 271(a) by (to paraphrase the provision) frustrating settlement and increasing the cost of litigation. But for her strategy and conduct, the work Mr. Klahs and his firm did, and the fees incurred, would not have been necessary."
The court rejected Boris's argument that Kimberly failed to meet and confer, noting that the parties had "several discussions regarding the proposed stipulation and order (which Ms. Rosenthal asserted she had not received and then turned out to have in her possession)." The court also rejected Boris's argument that the fees Kimberly requested were not reasonably related to the real estate RFO, stating, "The Court has reviewed, line by line, task by task, the billing statement submitted as Exhibit 1 to Mr. Klahs's declaration. The court notes that, except for the evidentiary objections to the declarations (which the Court generally disfavors), the tasks billed were directly connected with the dispute regarding the house listing." The court found that "$31,500 is an appropriate amount of sanctions," and ordered that they be paid directly to Klahs's law firm at a rate of $1,500 per month, with an interest rate of 10 percent, with any balance paid from the escrow on the sale of the residence.
Boris timely appealed.
DISCUSSION
On appeal, Boris asserts that the trial court erred in imposing sanctions because Boris committed "no conduct . . . that frustrated settlement or in any way caused unnecessary litigation costs." He also argues that the amount of the award was improper because it included fees that were not related to the allegedly sanctionable conduct. Kimberly contends that both the imposition of the award and the amount were within the trial court's discretion. We find no error and affirm.
A. The trial court did not err in awarding sanctions
As noted above, under section 271, "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." (§ 271, subd. (a).) Section 271 "advances the policy of the law 'to promote settlement and to encourage cooperation which will reduce the cost of litigation.'" (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.)
"A sanction order under Family Code section 271 is reviewed under the abuse of discretion standard." (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.) "[A] trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment." (Jameson v. Desta (2018) 5 Cal.5th 594, 609.)
Here, Boris has not demonstrated that the trial court abused its discretion in awarding sanctions under section 271. Kimberly asserted in the real estate RFO that Boris's actions relating to the sale of the residence warranted sanctions. She stated in her declaration that Boris insisted on a listing price that was relatively high, he refused to sign documents, and he would not contribute to repairs on the residence to help effectuate a sale. Boris stated in his own declaration that he did not see the need to lower the listing price, and that he wanted the residence sold as-is. This evidence supports the court's finding that the parties' disputes regarding the sale of the residence pre-dated Klahs's representation of Kimberly.
In addition, the trial court found that litigation increased due to confusion over the stipulation and Rosenthal's actions in opposing the real estate RFO and ex parte to shorten time. Boris and Rosenthal signed the May 2018 stipulation, but it was never mentioned by either party again. Whatever the reason for Rosenthal's failure to produce the signed May 2018 stipulation earlier, she did not provide an explanation for her initial insistence that she had never received it. In fact, Rosenthal did not even acknowledge the conflict between her earlier representations and her belated production of the signed stipulation. Moreover, Rosenthal opposed the ex parte to shorten time instead of simply agreeing to continue the hearing dates. The conflict regarding the residence was resolved, after many filings and two court appearances, when the parties and court signed the very stipulation Boris and Rosenthal had already signed in May 2018.
Boris points to evidence suggesting that he was not solely at fault for the increased litigation. He asserts that although Kimberly blamed him for impeding the sale of the residence, his evidence "shows contradictory facts." He argues that Kimberly's claim that he refused to sign the stipulation "was completely false." He also contends that Kimberly failed to properly meet and confer before filing the real estate RFO. Boris states that he and Rosenthal asked about retaining a different real estate agent in February 2019, but Kimberly and her counsel did not respond. He asserts that Kimberly was the party who increased the costs of litigation by seeking to back out of the settlement agreement, and the trial court "ignored" that he was "cooperating and trying to resolve the matter," while Kimberly was the party "trying to litigate the case."
The fact that there was contradictory evidence does not demonstrate that the trial court abused its discretion. "Sanctions under section 271 . . . will be reversed on appeal only on a showing of abuse of [the trial court's] 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.) Here, although both parties and their attorneys got some of the facts wrong and failed to communicate clearly with each other, Boris has not demonstrated that no reasonable judge would have found that Boris and Rosenthal's actions "frustrate[d] the policy of the law to promote settlement of litigation and . . . reduce the cost of litigation." (§ 271, subd. (a).) For example, the court rejected Boris's claim that Kimberly and Klahs failed to meet and confer, finding that Klahs "attached an email to his declaration which demonstrates otherwise," and Klahs and Rosenthal "both referred in their papers to several discussions regarding the proposed stipulation and order." And although Boris and Rosenthal signed the May 2018 stipulation, the court noted that Rosenthal later insisted that she had never received it. The court therefore made clear that it had considered the evidence and reached its decision based upon that evidence. The imposition of sanctions was therefore not an abuse of discretion.
B. Notice of the request for sanctions was sufficient
Boris also contends his due process rights were violated because notice for Kimberly's sanctions request was insufficient. He asserts that Kimberly's notice did not sufficiently advise him of the specific grounds for the sanctions she sought. Section 271 states that "[a]n 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." (§ 271, subd. (b).) "Due process requires a party be given notice and an opportunity to be heard before a court imposes sanctions under section 271." (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178.)
Boris acknowledges that "[s]ection 271 does not specify the form of notice to be provided." (In re E.M. (2014) 228 Cal.App.4th 828, 850.) However, a notice for sanctions under section 271 must "advise of the specific grounds and conduct for which the fees or sanctions are sought." (In re Marriage of Davenport, supra, 194 Cal.App.4th at p. 1529.)
Here, Boris had ample notice and opportunity to be heard. The real estate RFO, filed March 22, 2019, made clear that Kimberly was seeking sanctions based on Boris's actions with respect to selling the residence. Klahs's declaration filed the same day included information about attorney fees billed. Boris filed a written opposition to the ex parte on March 22. He filed a written opposition to the RFO on April 29. The court and the parties discussed the issue at the May 16 hearing. Kimberly and Klahs submitted additional support for her claim on May 23. Boris responded with additional evidence on June 3. The court issued its order for sanctions on July 25, 2019. In the five months this issue was pending, Boris had ample notice and opportunity to respond to Kimberly's request for sanctions.
C. The amount of the award was not an abuse of discretion
Boris contends that the amount of the sanctions award was unreasonable, and there was insufficient evidence to support the amount of the court's award. He asserts that Klahs told the court that some of his time was spent getting up to speed on the case, and the time spent on the ex parte alone could not justify the amount of the award. The trial court rejected this argument below, specifically finding that unrelated work was redacted from the billing statements, and the remaining "tasks billed were directly connected with the dispute regarding the house listing." We have reviewed the bills Klahs submitted, and they seem targeted to issues regarding the sale of the residence, the real estate RFO, and the ex parte. We find no abuse of discretion.
Boris also asserts that the award "placed an unreasonable financial burden" on him. (See § 271, subd. (a) ["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."].) He does not discuss any effect of the award on him or his finances, however; he asserts only that the award was unreasonable based on Klahs's work and billing statements. --------
Moreover, a sanctions award under section 271 is not required to directly reflect attorney fees relating to the conduct at issue. Section 271 "does not require a correlation between the sanctioned conduct and specific attorney fees." (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1226.) In addition, "a party seeking sanctions pursuant to section 271 need not show the other side's sanctionable conduct . . . caused independent harm." (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1155.) Thus, even if Kimberly had not demonstrated that Klahs's bills were related to the sale of the residence, the amount of the sanctions award would not necessarily be erroneous on that basis.
Boris has not demonstrated that the trial court abused its discretion in imposing sanctions, or setting the amount of the sanctions. We therefore affirm the order.
DISPOSITION
The sanctions award order is affirmed. Kimberly Lebid-Jurtschyk is entitled to recover her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J. We concur: MANELLA, P. J. CURREY, J.