Opinion
B320478
05-28-2024
In re the Marriage of LUZELBA LOZANO and ZAKI SALEH MANSOUR. v. ZAKI SALEH MANSOUR, Appellant. LUZELBA LOZANO MANSOUR, Respondent,
The Appellate Law Firm and Mark Kuntze for Appellant. Decarolis Family Law Group, Patrick Decarolis, Jr. and Melissa Ramirez Fresquez for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BD654378 Alison Mackenzie, Judge. Affirmed.
The Appellate Law Firm and Mark Kuntze for Appellant.
Decarolis Family Law Group, Patrick Decarolis, Jr. and Melissa Ramirez Fresquez for Respondent.
WEINGART, J.
Because of the uniquely personal and intimate interests at stake in family law matters, the Family Code expressly seeks to discourage overly aggressive litigation tactics permissible in other types of cases and instead "to promote settlement of [family law] litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys." (§ 271, subd. (a).) To enforce this mandate, courts may award sanctions in the form of attorney's fees and costs against parties whose conduct frustrates this policy. (Ibid.)
All unspecified statutory references are to the Family Code.
For more than two years, appellant Zaki Saleh Mansour (Zaki) repeatedly acted in ways sanctionable under section 271. After signing a marital settlement agreement (MSA), he then continually sought to avoid complying with it. This included trying to undo the MSA and advancing other litigation positions without merit, thwarting the sale of a community property which ultimately necessitated law enforcement physically ejecting him from the property, and threatening to shoot counsel for his former spouse Luzelba Lozano Mansour (Luci). The family court sanctioned Zaki $260,000 for attorney's fees and costs incurred by Luci as a result of Zaki's obstreperous conduct.
As is common in family law matters, we refer to the parties by their first names for ease of reference and not out of any disrespect.
Zaki now appeals that sanctions order. Zaki concedes aspects of his conduct warranted sanction pursuant to section 271, and that he has the financial means to pay the award. He argues the court abused its discretion as to portions of the award, and that we should reduce the overall sanction, because Luci did not sufficiently tie the challenged aspects of his conduct to an unreasonable increase in her litigation costs.
As described below, we find the court did not abuse its discretion in imposing sanctions under section 271, and that substantial evidence supports the entire sanction amount imposed by the court.
BACKGROUND
A. The MSA and Dissolution Judgment
On February 22, 2017, Luci filed for dissolution of her marriage to Zaki. On April 17, 2019, the parties participated in a mandatory settlement conference before Judge B. Scott Silverman at which Patrick DeCarolis represented Luci and Zaki represented himself. The parties reached a resolution and entered into the MSA, which was memorialized in a three-page document entitled "deal memorandum." (Capitalization omitted.)
As relevant here, the MSA provided for the distribution of four real properties: a rental property on Virginia Avenue in Los Angeles (the Virginia property), a residential property on Sunset Boulevard in Los Angeles (Sunset), a property on Mariposa Avenue in Los Angeles (the Mariposa property), and a property in Las Vegas (the Las Vegas property). Zaki was awarded the Virginia and Las Vegas properties, Luci the Mariposa property, and Sunset was to be sold. Paragraph 1A of the MSA awarded Zaki the Virginia property "subject to the encumbrances thereon" and provided that any outstanding obligations on the Virginia property in Luci's name were to be paid with proceeds from the sale of Sunset. The Mariposa and Las Vegas properties were also awarded to Luci and Zaki respectively "subject to the encumbrances thereon."
Paragraph 2 of the MSA provided for Sunset (where Zaki was living) to be sold and for Zaki to vacate the property "upon the acceptance of an offer." Zaki and Luci were to "jointly control the sale of the property" and "jointly agree on the listing agent and sales price." To the extent they could not agree, a retired judge with family law experience was to act as a judicial referee. The referee would have "broad power over the sale, including the rejection or acceptance of any offer." "The net proceeds of the sale" were to be distributed to reimburse each party for costs and expenses related to the sale of Sunset, provide trusts for the couple's two children, and to pay costs related to two judgments against the community. The remaining amount was then "awarded one-half to each party."
Under Paragraph 6A, Zaki was to "indemnify and hold Luci harmless for any liability related thereto," including "the action in Las Vegas currently pending with [an insurance company]."
Before signing the stipulated settlement, Judge Silverman repeatedly asked Zaki under oath whether he understood the terms of the MSA and agreed to them. Zaki responded that he understood the agreement and that "[a]s a matter of fact, I did participate in the drafting of the document." The court entered the MSA as a stipulated order enforceable pursuant to Code of Civil Procedure section 664.6, and per the parties' request, the settlement provisions became effective immediately as court orders. The court ordered DeCarolis to prepare a judgment.
By a letter to Zaki dated April 18, 2019, DeCarolis's office suggested three possible referees to aid in the sale of the Sunset property. Zaki, who was hospitalized, did not select a referee. Instead, he threatened to sue Luci if she listed the property for sale. DeCarolis assured Zaki that Luci would not list the property without Zaki's approval, urged Zaki to "focus on [his] health," and stated he would check back with Zaki in a week. On April 23, April 30, and May 3, 2019, Zaki indicated via emails that he was unhappy with the MSA and claimed it was fraudulent.
On May 7, 2019, DeCarolis sent a draft judgment to Zaki. A week later, DeCarolis asked Zaki whether he had identified a preferred referee or listing agent. Zaki did not agree to the draft judgment, claiming it included terms that were not part of the MSA. Nor did he identify a listing agent or referee, despite repeated prompting from DeCarolis.
On June 11, 2019, Luci filed a request for order (RFO) asking the court to enter judgment and to provide other relief, including appointing one of the three identified referees. Zaki obtained counsel, who proposed a competing draft judgment. In urging the court to adopt his draft judgement, Zaki did not argue the MSA was invalid due to fraud.
In July 2019, Luci and her daughter moved out of the Sunset property, where Zaki remained. On July 17, 2019, Zaki's counsel identified Rabi Aboulhosn as his choice for a listing broker for Sunset, stated that Zaki wanted the property to be listed for $10 million, and agreed to have Judge Robert A. Schneider (Ret.) appointed as the referee.
On August 29, 2019, the trial court (Judge Alison Mackenzie) encouraged the parties to agree to a judgment. The court noted each party had added portions to the MSA "to make the judgment more rational by including some additional information that's not meaningfully different from what you . . . agreed to . . . to make the judgment make more sense. If you cannot agree on that, then I will truly take the [MSA] that you . . . signed and that will be the judgment." The parties could not agree, and the court entered a judgment of dissolution that attached an executed copy of the MSA without further elaboration.
B. Events After Entry of Judgment
We now summarize the events after entry of judgment that Luci later identified as giving rise to her request for section 271 sanctions.
1. Restraining Orders
In September 2019, Zaki sought a domestic violence restraining order against Luci. Zaki's application and the order thereon are not included in the record. According to the docket and DeCarolis's declaration, Zaki's request for a temporary restraining order (TRO) was denied. Luci also sought a domestic violence TRO against Zaki after an incident where he screamed and cursed at her. On appeal, Zaki does not dispute his conduct relating to the TROs was sanctionable. Luci's RFO for section 271 sanctions did not identify the amount of fees and costs attributable to the TROs, but a review of billing entries on the invoices submitted indicates that the fees expressly related to this issue totaled a minimum of $6,638.
2. Lis Pendens Not Related to Sunset
Luci twice requested Zaki withdraw a lis pendens he had filed against the Mariposa property, which had been awarded to her pursuant to the MSA. Zaki refused to do so for three months, and relented only after DeCarolis notified Zaki's new attorney that Luci would seek ex parte relief on the issue. Luci incurred fees and costs of $1,450 in connection with these issues.
3. Obstruction of the Sunset Property Sale
On October 3, 2019, the court entered an order appointing Judge Schneider as referee. In early October 2019, Zaki's counsel requested that Luci transfer title of the Virginia property to Zaki. DeCarolis invited Zaki's attorney to provide documents for Luci's signature, but Zaki and his attorney never did. On October 22, 2019, Zaki filed an ex parte application, in propria persona, to, among other things, compel Luci to cancel listings to sell Sunset and to transfer title for the Virginia property to him. The court denied the ex parte on the basis that emergency relief was not warranted. The record does not indicate that Zaki re-filed these requests.
In December 2019, the parties could not agree to a real estate agent who would list the Sunset property for sale. Luci therefore sought the referee's assistance. On January 7, 2020, the referee made certain orders to move the listing process forward, including ordering that if the parties could not agree to a single listing broker, a co-listing of Sunset was required with a broker for each party. Luci incurred further fees and costs in connection with attempts to show the property despite Zaki's objections and to get the order after hearing signed. In the meantime, outstanding property taxes, including a monthly penalty of over $1,200, continued to accrue on Sunset.
In May 2020, Luci signed a listing agreement with Aboulhosn, Zaki's selected agent. On August 18, 2020, Luci offered to buy Zaki's interest in Sunset for $3 million. The couple's children would participate in the purchase, accepting an interest in Sunset in exchange for half the amount that would have been placed into trusts for them under the MSA. On September 1, 2020, Zaki responded by accusing Luci of fraud and breaching the MSA, and counter-offered to release her from these claims if she gave him Sunset and paid him $2 million.
In September 2020, Luci sought to have her agent, Luis Ruiz, added as a listing co-agent. Ruiz sent a co-listing agreement to Aboulhosn, but Zaki objected, and Aboulhosn refused to sign it. The referee reiterated that each party had a right to select a broker, who did not need to be approved by the other party. Ruiz then listed the property and notified Zaki that he had scheduled a showing. Zaki (who remained living in the home rent free) sent emails that due to the COVID-19 pandemic, he was not "accepting appointments," threatened legal action for violating his privacy, and claimed there were no procedures in place for Ruiz to show Sunset. Zaki and Aboulhosn were present when Ruiz appeared to show the property. "When [Ruiz] tried [to] leave, [Zaki] blocked [Ruiz's] car from leaving . . . for about 15 minutes."
By an ex parte application on November 20, 2020, Luci sought to have Ruiz appointed as the sole broker responsible for the sale of Sunset for a period of six months and to have Zaki vacate Sunset, sign documents necessary for the sale of the property within 24 hours of receiving them, and withdraw a lis pendens on the property. In his declaration in support of Luci's ex parte, Ruiz declared that Aboulhosn was operating under Zaki's control and not trying to sell Sunset. Moreover, based upon a comparative market analysis and the fact that Sunset was in disrepair, Ruiz believed the listing price of $10.5 million should be reduced to approximately $6.3 million.
Zaki responded by filing his own an ex parte application asking the court to add him to the Sunset title and for orders setting the listing price at $8.5 million, staying the sale of Sunset or alternatively holding the proceeds from the sale until an RFO he filed on October 22, 2020 was heard, and requiring Luci to select an agent other than Ruiz.
We discuss the October 22, 2020 RFO in further detail below.
In response to the dueling ex parte applications, the referee appointed Aboulhosn as Zaki's agent and Ruiz as Luci's agent, and required Aboulhosn to speak directly with Ruiz. He clarified either agent could show the property as long as 24 hours' notice was given. In that event, Zaki was to vacate the property 30 minutes prior to the time of showing and remain away for a period of two hours. The referee set the listing price at $8 million and declined to stay the sale of the property. He also ordered that Luci be allowed onto the property so that she could take photographs and videos relating to its condition. He further ordered that each party sign necessary documents within 48 hours of receiving them.
According to Ruiz's declaration, on January 12, 2021, a potential buyer offered $5,350,000 to buy Sunset. Zaki insisted that he and Luci counter at $7,775,000. Although Luci wanted to counter at $6.2 million, after three days of back and forth, she agreed to Zaki's counteroffer amount. Zaki then refused to sign the counteroffer, and on January 19, 2021, the buyer retracted his offer.
On February 1, 2021, Luci brought an ex parte application before the referee to reduce the listing price to $6.2 million, require Zaki to vacate the property, and order Zaki to respond to offers within 24 hours. The ex parte attached multiple photographs showing the property was in need of repair and maintenance. The referee ordered the listing price reduced to $6.45 million, that the party receiving a proposed counteroffer respond within 24 hours, and that if there was no response, the other party could unilaterally submit a counteroffer. The referee denied the request to have Zaki vacate the property. In February and March 2021, the parties received two offers for the property at $5.5 million and nearly $5.8 million. They counter-offered at $6.45 million and $6.25 million, respectively. Neither counteroffer was accepted.
Given the delay in selling Sunset, on June 14, 2021, Luci brought a RFO before the referee to buy Zaki's interest in Sunset, setting the value of the property at $6.2 million. She asked that in determining the buyout amount, the referee consider, among other items, $216,387 in outstanding property taxes. The referee denied the request.
On June 29, 2021, after futile attempts to agree to a counteroffer amount following receipt of an offer of $4.5 million for the Sunset property, Luci brought an ex parte application before the referee for a number of requests, including that the parties be ordered to sign and present a counteroffer of $6.25 million. The referee granted all her requests.
On August 11, 2021, Luci brought another ex parte application asking the referee to force a counteroffer in the amount of $5.8 million because Zaki's agent would not execute the counteroffer. The referee granted Luci's request.
On September 22, 2021, Luci filed an ex parte application seeking to proceed with multiple counteroffers. Luci sought to allow the prospective buyer a five-day due diligence period and to counteroffer at $5.6 million. The referee granted Luci's request, including as to the due diligence period, but set the counteroffer amount at $5.8 million. Zaki refused to sign the referee-authorized counteroffers. On September 30, 2021, Luci filed an ex parte application seeking sole authority to execute counteroffers. The referee ruled that if Zaki did not sign the counteroffers within three hours of receipt, then the forms could be revised to require only Luci's signature on behalf of the community.
On October 1, 2021, Zaki and Luci signed a purchase agreement to sell Sunset for $5.8 million. Although the judgment required Zaki to vacate the property "upon the acceptance of an offer," he did not move out. On October 25, 2021, Luci brought an RFO before the referee, seeking, among other things, to have Zaki vacate the property and execute a withdrawal of lis pendens on the property. The referee concluded he did not have authority to enforce the judgment, but noted the purchase agreement provided that the property needed to be vacant no less than three days prior to the close of escrow, November 5, 2021. Accordingly, he ordered that Zaki move out on or before November 2, 2021. He further ordered that Zaki execute the withdrawal of lis pendens.
On November 2, 2021 (the day he was to move out of Sunset), Zaki filed an ex parte application to extend the time he remained at the property by five months. The referee denied the request.
On November 8, 2021, Luci sought an order issuing a writ of possession. In opposing Luci's request, Zaki argued that, among other things, Luci had no possessory interest in Sunset and that she be required to show how she acquired title to it. He further argued he had no money to find another home and required resolution of his October 22, 2020 RFO (much of which had already been dismissed by the court nearly two months previous) before he could move. On November 12, 2021, the court issued the writ. In a declaration, DeCarolis stated, "to avoid a delay in getting the [w]rit issued, I spent an entire day traveling between the courthouse and the [Los Angeles County] Sheriff's [Department] . . . to get a [w]rit that the [s]heriff's [o]ffice would accept." The sheriff posted a notice of writ, with an eviction date of December 15, 2021.
On November 18, 2021, Zaki sought to stay the writ of possession, reiterating many of the same arguments he made in his opposition. The trial court denied his request.
On November 29, 2021, the buyer proposed an addendum to the purchase agreement under which he would receive $2,000 per day beginning on December 1, 2021 until Zaki vacated Sunset. On December 6, 2021, Luci filed an ex parte application before the referee to have the sole authority to sign the addendum. The referee granted her authority to sign an addendum that allowed for a $1,000 per diem, to be paid by Zaki.
On December 15, 2021, DeCarolis "arrived at the Sunset [p]roperty with [Luci], Mr. Ruiz, a locksmith, two helpers, and two deputies to take possession. [Zaki] was still in his pajamas. He claimed he had a tenant . . . who filed a claim with [the] court. The deputies were about to leave when [DeCarolis] intervened. [DeCarolis] convinced them to call their supervisor and the [c]ourt [c]lerk . . . [because] this was not an unlawful detainer case and no hearing was required. After an hour of phone calls, [the deputies] agreed with [DeCarolis] and finally forcefully removed [Zaki]."
DeCarolis's firm spent a total of 180 hours directly related to enforcing the sale of the Sunset property and getting Zaki to vacate the property. This cost Luci $94,608 in attorney fees and costs.
4. Zaki's October 22, 2020 RFO
Zaki filed an RFO on October 22, 2022, that made nine requests Luci pay in whole or in part certain obligations based on his proffered reading of the MSA. In request No. 1, Zaki sought an order to have the loan encumbering the Virginia property paid from Sunset sale proceeds such that Luci would pay half of that cost despite Zaki being awarded Virgina "subject to all encumbrances thereon." Request No. 2 was for "[a]n order requiring [that] the sums due [for the Virginia property] elevator, pest control, maintenance, [and] utilities," totaling approximately $300,000, also be paid one-half by Luci. Zaki further sought payment of Sunset's outstanding property taxes (request No. 3), water bills (request No. 4), closing costs relating to the sale (request No. 5), and judgment liens (request No. 6). In requests Nos. 7 and 9, Zaki sought to revisit his claim that Luci was obligated to pay certain monies related to litigation concerning the Las Vegas property, notwithstanding the release in paragraph 6A of the MSA. Request No. 8 was to vacate the portion of the judgment that established a trust for Zaki and Luci's children because Luci had allegedly negotiated that provision in bad faith.
On February 4, 2021, the parties stipulated that an evidentiary hearing on Zaki's RFO was necessary and that they each wished to conduct discovery before the hearing. The trial court signed the stipulated order and continued the hearing on Zaki's October 22, 2020 RFO to permit the parties to conduct discovery. In May 2021, Zaki brought an ex parte RFO to further continue the hearing on his October 22, 2020 RFO. The court denied the request but clarified that it would hold a status conference before commencing the evidentiary hearing.
On August 30, 2021, Luci filed an RFO to dismiss Zaki's October 22, 2020 RFO. She argued the requests were unintelligible and not supported by the governing judgment. Zaki opposed the request for dismissal.
On September 22, 2021, the trial court held a hearing on Luci's RFO for dismissal. Luci's counsel agreed that the outstanding property taxes on Sunset and closing costs relating to that property's sale should be paid from the gross proceeds of the sale, thus disposing of Zaki's RFO requests Nos. 3 and 5. Following argument, the trial court dismissed requests Nos. 2, 4, 6, 7, and 9, and found requests Nos. 3 and 5 were moot. For Zaki's request No. 1, the court observed that it could neither enforce nor dismiss the request because the parties had "fundamentally different interpretations of that first paragraph of the judgment regarding the Virginia property." Because it needed to take evidence as to whether the provision was indeed ambiguous, the court denied Luci's request to dismiss request No. 1. It also determined it would proceed to the evidentiary hearing for request No. 8.
During the evidentiary hearing, the court reiterated that it did not find the judgment's first paragraph was ambiguous, but instead that it was susceptible to ambiguity.
The court held the evidentiary hearing on September 22, 23, and 24, 2021 and February 2, 2022. Zaki, Luci, and DeCarolis testified. In testifying, Zaki asserted that the MSA provided Luci should pay all the outstanding costs on the property awarded to him, a position different than the one advanced in his RFO and which lacked any textual support in the MSA. On February 4, 2022, the court denied Zaki's requests. It found request No. 8 was time barred to the extent Zaki was claiming mistake under section 2122, subdivision (e). It also found Zaki's fraud theory was "unintelligible," and that Zaki did not present evidence of a misrepresentation or damages. The trial court denied request No. 1, finding there was no ambiguity in the MSA that Zaki was responsible for paying the loan that encumbered the Virginia property. It also observed that Zaki's testimony on the issue was "utterly not credible" and that Zaki threatened to shoot DeCarolis when the two encountered each other in the men's restroom during a break in the proceedings.Luci submitted evidence that she incurred $83,105 in fees and costs through December 2021 directly related to defending against Zaki's October 22, 2020 RFO. In January and February 2022, she spent approximately $36,600 in additional fees and costs, some of which were attributable to defending against the RFO.
The court denied Zaki's January 28, 2022 ex parte RFO to continue the February 2, 2022 continued evidentiary hearing.
Zaki appealed the court's denial of request No. 1 and its dismissal of request No. 2, and we affirmed. We observed that Zaki's position that Luci was 100 percent responsible for paying the Virginia property operational expenses "ha[d] zero textual support, and understandably led the court to find his testimony not credible." (In re Marriage of Mansour (Mar. 25, 2024, B319787) [nonpub. opn.].)
5. Zaki Claims a Significant Omitted Asset
On September 24, 2021, during the evidentiary hearing on his October 22, 2020 RFO, Zaki testified he had a painting valued at $2.5 million. Although he received the painting a "long time ago," Zaki did not disclose it during the dissolution proceedings. Accordingly, Luci filed an RFO for adjudication of the omitted asset. On February 19, 2022, after Luci had already filed her RFO, the painting was appraised to have a total fair market value of only $500. On March 24, 2022, the court granted Luci's RFO, but given the painting's true value she did not want it. The court noted that Zaki had "no coherent or credible explanation for his shifting testimony" about the value of the painting. Luci incurred $1,537 in attorney fees and costs in connection with the omitted asset issue through December 2021. She also incurred fees relating to the adjudication of this asset in January and February 2022, although she did not specify a precise amount related only to that issue.
C. Luci's RFO Seeking Section 271 Sanctions
On January 27, 2022, Luci filed a RFO seeking all attorney fees and costs that she incurred between August 30, 2019 (the day after entry of judgment) and December 29, 2021, as section 271 sanctions. Luci also sought to recover fees and costs related to bringing the RFO seeking 271 sanctions. Before the hearing of the RFO, she requested as well attorney fees and costs incurred in January and February 2022 arising from continued litigation relating to Zaki's October 22, 2020 RFO and the omitted asset issue. In total, she requested $270,600 and submitted evidence she had incurred that entire amount in fees and costs.
Luci argued Zaki unnecessarily increased the costs of litigation by engaging in the conduct summarized above. In opposition, Zaki primarily argued that Luci's counsel had poorly drafted the MSA such that it was full of ambiguities, necessitating extensive litigation to clarify its terms. He further took issue with certain fees and costs identified in Luci's RFO, and observed that the fees and costs itemized in Luci's RFO that were specifically incurred in response to discrete identified acts by Zaki totaled $178,136, which was less than the amount she sought in sanctions.
Zaki requested that the court award to him section 271 sanctions in the amount of $350,000.
After hearing argument from the parties, on March 24, 2022, the court issued a written ruling in which it found Zaki had "engaged in a course of conduct for more than [two] years intended to thwart the judgment. His obstreperous conduct regarding the sale of the house, including failing to agree to a referee, failing to agree to hiring a real estate broker who would work on selling the home, refusing to make counteroffers and/or considering reducing the price of home, meant that [Luci] had to incur hundreds of thousands of dollars to get the house sold as provided for in the judgment. [Zaki]'s unreasonable failure to comply with the judgment and court orders regarding the sale of the Sunset property culminated with his refusal to comply with a writ of possession and failure to vacate the property until the Los Angeles Sheriff's Department forcefully evicted him. [¶] [Zaki] also advanced positions not reasonably supported in law or fact. In October 2020, [Zaki] filed an RFO seeking to 'enforce' the judgment, which was really an attempt to re-write the terms of the judgment to his liking. The [c]ourt dismissed [seven] of the [nine] 'requests' . . . and following an evidentiary hearing on the remaining two terms, found that there was no factual basis whatsoever for his claims. The [c]ourt also found that [Zaki] had no credibility with respect to his testimony on a range of issues, including the signing of the [MSA]. [Zaki] also . . . threaten[ed] to shoot [Luci]'s attorney in the men's restroom during a break in the proceedings. . . . [Zaki] also advanced a position that had no factual basis when he testified that he had a $2.5 million dollar painting that he had failed to disclose to [Luci], and then later claim[ed] he was referring to a piece of art that was later appraised to be only $500. His testimony regarding this painting was inconsistent at best and duplicitous at worst and lacks any credibility."
The court found Zaki had the ability to pay sanctions, as the real property alone awarded to him in the dissolution judgment was worth $6.8 million, and one of those properties was a 42-unit apartment building for which Zaki received all rent. As to the amount of sanctions, the court found Luci "has incurred approximately $270,000 in fees and costs defending against [Zaki's]" post-judgment conduct, which "was egregious, demonstrating a pervasive and ongoing disregard for the judgment. The [c]ourt determines that, absent [Zaki]'s obstreperous conduct, [Luci] would have had to spend approximately $10,000 to ensure the sale of the Sunset home. Thus, in exercising this discretion, the [c]ourt orders [Zaki] to pay $260,000 in sanctions, to be paid from his portion of the net proceeds from the sale of the Sunset property."
Zaki timely filed a notice of appeal.
DISCUSSION
A. Standard of Review
We review sanction orders pursuant to section 271 under the abuse of discretion standard. (In re Marriage of Smith (2015) 242 Cal.App.4th 529, 532.) "Under this standard of review, the trial court's order will be upheld on appeal unless, considering all the evidence viewed most favorably in support of the order and indulging all reasonable inferences in its favor, no judge could reasonably make the order." (In re Marriage of Rangell (2023) 95 Cal.App.5th 1206, 1218.) "Applying the abuse of discretion standard, we consider de novo any questions of law raised on appeal, but will uphold any findings of fact supported by substantial evidence." (In re Marriage of Smith, supra, at p. 532.) The substantial evidence standard requires" '"' "all conflicts must be resolved in favor of the [prevailing party], and all legitimate and reasonable inferences indulged in [order] to uphold the [finding] if possible." '"' [Citation.]" (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1479.)
B. General Legal Principles Concerning Section 271
"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.' [Citation.]" (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1318.)
C. The Trial Court Did Not Abuse Its Discretion
As noted above, Zaki does not dispute that some of his conduct was sanctionable. Rather, Zaki attempts to reduce the $260,000 sanction award by arguing not all of it relates to sanctionable conduct. Zaki argues: (1) he did not fail to agree to entry of judgment memorializing the MSA; (2) Luci stipulated to an evidentiary hearing and discovery relating to his October 22, 2020 RFO, and thus cannot now complain that she incurred fees and costs as a result; (3) the litigation related to Sunset sale arose from "the poorly drafted" MSA and thus was Luci's fault and not his; (4) two of the items for which Luci sought sanctions were for services that did not need to be provided by an attorney; and (5) Luci specifically identified only $178,136 in fees and costs that directly resulted from specific actions by Zaki, and thus, the court abused its discretion in awarding her fees and costs in a greater amount.
Zaki's appellate briefing also attempts to incorporate by reference a hodgepodge of additional arguments made in his trial court brief about why his conduct was not sanctionable. "It is well settled that the Court of Appeal does not permit incorporation by reference of documents filed in the trial court," such as motion pleadings. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20.) "We therefore disregard these purported incorporations by reference." (Ibid.)
1. Pre-entry of Judgment Conduct Is Not Included in the Sanction Award
Zaki argues we should reverse a portion of the sanctions award because he did not fail to agree to entry of judgment. Luci's request for sanctions sought fees and costs incurred on or after August 30, 2019, one day after the trial court entered judgment. Nor did the court's award include fees or costs incurred as a result of Zaki's alleged failure to agree to entry of judgment. Accordingly, this argument is irrelevant to the propriety of the sanctions award.
2. The Trial Court Did Not Abuse Its Discretion in
Awarding Attorney Fees and Costs Incurred in Connection with Zaki's October 22, 2020 RFO
A party may recover attorney fees and costs as a section 271 sanction for having to defend against a baseless motion. (See In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.) At the time Zaki filed his opening brief, we had not yet decided his appeal of the trial court's ruling on his RFO. Zaki's only assertion that his RFO had merit is that "[s]hould [he] be successful on the appeal of that order, [the] RFO would not have been frivolous and should not have been subject to an award of attorney fees." However, we affirmed the trial court's order in appeal No. B319787. In doing so, we determined there was no ambiguity in the MSA and that Zaki's position had no textual support in the MSA. (In re Marriage of Mansour, supra, B319787.) We further observe Zaki unnecessarily increased the costs of litigation by providing testimony that the trial court determined was "utterly not credible," and thereby obfuscating the issues to be determined.
Zaki argues that Luci stipulated to an evidentiary hearing and discovery relating to his RFO and that he cannot be sanctioned "for actions that [Luci] agreed to." We reject Zaki's framing of this issue. Luci did not agree to Zaki's filing of a meritless RFO. Once faced with it, Luci was forced to incur fees and costs to respond to it. Zaki's argument erroneously presumes a party need never take discovery or present evidence to defeat a meritless motion. This simply is not so. Nor is it appropriate to penalize Luci for stipulating to an evidentiary hearing when Zaki clearly wanted one. Had Luci resisted such a concession, she herself would likely have acted contrary to section 271's encouragement of cooperation between the parties.
3. The Court Did Not Abuse its Discretion in Awarding Fees and Costs Arising from Zaki's Conduct Relating to the Sale of the Sunset Property
As he did in the trial court, Zaki argues ambiguities in the MSA were entirely the fault of Luci's counsel and required extensive litigation before Sunset could be sold. We are not persuaded. First, to the extent ambiguity exists, it cannot be said that only Luci is to blame. Zaki represented to Judge Silverman that he "participate[d] in the drafting of the [MSA]." Additionally, Zaki's counsel had an opportunity to identify any claimed ambiguities and address them when counsel submitted a proposed draft judgment. He did not do so. Rather, Zaki's draft judgment reiterated the very same language that Zaki later claimed was ambiguous.
Second, there was nothing ambiguous in the MSA about Zaki vacating Sunset "upon acceptance of an offer." The parties signed the purchase agreement on October 1, 2021, and he should have left the property on that day. He steadfastly refused to do so until the sheriff deputies forcibly evicted him on December 15, 2021. Even on that day, Zaki misrepresented to the deputies that they could not take any action because he had a tenant, causing DeCarolis to expend additional time to convince the deputies to remove Zaki. Thus, Zaki clearly and unreasonably forced Luci to incur fees and costs to effectuate that term of the MSA.
Third, although the MSA did not spell out the listing procedure and listing price, the court deducted $10,000 in fees from the award to account for this. This estimate was reasonable, as Luci incurred $9,829 in fees and costs in connection with getting the referee to issue an order on January 7, 2020, establishing the co-listing procedure and initial listing price. Once the listing agents were appointed, however, Zaki perpetrated multiple machinations to thwart the required listing and sale of Sunset.
Zaki also argues the court abused its discretion by including in its award $890 Luci paid for her attorney's drafting of the order appointing the referee because the order was a result of a stipulation between the parties. Zaki's argument ignores that he refused to identify his referee selection until Luci sought the court's assistance on the issue, thus necessitating these fees.
4. The Court Did Not Include Non-attorney Fees and Costs in Its Sanction Award
Zaki argues Luci should not be able to recover attorney fees "for things that did not need to be done by an attorney, especially one charging $800 per hour." In particular, Zaki argues the sanctions award should not include fees for DeCarolis's travel time between the courthouse and the sheriff's department to get a writ of possession that the sheriff's department would accept or fees for being present at Sunset on the day Zaki was evicted.
In support of his argument, Zaki cites Menezes v. McDaniel (2019) 44 Cal.App.5th 340. Menezes is inapposite. There, the appellate court held that a husband could not recover his own international travel expenses occasioned by his wife's misconduct under section 271 because the statute authorized only sanctions that were tethered to attorney fees and costs. (Id. at p. 351.) Zaki does not offer any authority that a section 271 sanctions award cannot include an attorney's travel time carrying out tasks that are related to his client's litigation, and courts have held compensable attorney's fees can include reasonable travel time at the full hourly rate. (E.g., U.S. v. City and County of San Francisco (N.D.Cal. 1990) 748 F.Supp. 1416, 1422 [collecting cases].) Nor does Zaki demonstrate that it was unreasonable for DeCarolis to perform these services on his client's behalf. The evidence in the record is to the contrary: If DeCarolis had not been present while the sheriff's deputies came to evict Zaki, the deputies may have let Zaki remain, falsely believing there was a tenant on the property and an unlawful detainer action was pending.
DeCarolis's invoices reveal that the majority of the work done on Luci's behalf was conducted by an associate with a much lower billing rate than DeCarolis.
5. Section 271 Does Not Require Tying Specific Incurred Fees to a Specific Act During a Lengthy Period of Sanctionable Activity
By the time the RFO for section 271 sanctions was heard, Luci had incurred over $270,600 in fees and costs related to enforcing the judgment and adjudicating the asset omitted by Zaki from his required declarations of disclosure. Zaki argues that Luci directly tied only $178,136 of this amount to specific actions by Zaki, and thus, the court abused its discretion in awarding her fees and costs in a greater amount. We disagree.
An award of attorney's fees and costs under section 271 must be "base[d] . . . on the extent to which any conduct of each party or attorney furthers or frustrates the policy" of promoting settlement and encouraging cooperation to reduce the cost of litigation. (§ 271, subd. (a).) But section 271 does not impose an additional hurdle that the party seeking sanctions tie the fees and costs sought dollar for dollar to each specific sanctionable act. A case like this illustrates why-over a two-year campaign of myriad obstreperous acts as occurred here such a task would be near impossible. Prior courts have therefore recognized that section 271 does not limit sanctions to specific identified costs" 'resulting from the bad conduct'" because "the misconduct may increase attorney fees in ways that are indirect and difficult to prove." (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1155-1156.) While Zaki claims greater precision should be required, the law is to the contrary: "the party seeking sanctions pursuant to section 271 need not establish with great precision an amount directly caused by the improper conduct." (Id. at p. 1155; see also In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 990-991 ["it is of no moment whether some of the sanctions can be pigeonholed outside of [the requesting spouse]'s costs that directly resulted from [the other spouse]'s conduct"].)
Thus, neither Luci nor the court needed to tie each individual billing entry or cost to specific sanctionable conduct. The trial court found the required nexus under section 271 between Zaki's "course of conduct for more than [two] years intended to thwart the judgment" and the $260,000 in attorney fees and costs it awarded. The court found that Luci incurred overall approximately $270,000 in fees and costs defending against Zaki's obstreperous conduct, that absent such conduct Luci would have had to spend approximately $10,000 to ensure the sale of the Sunset home, and therefore $260,000 in sanctions was appropriate. Substantial evidence supported these findings as Luci submitted evidence that she had incurred a total of $270,600 in fees and costs since entry of judgment as a result of Zaki's refusal to comply with the judgment, and it is a reasonable inference from the record that Zaki's uncooperative and unreasonable conduct drove the post-judgment litigation in this matter.
DISPOSITION
The family court's order imposing section 271 sanctions is affirmed. Luci is awarded her costs on appeal.
We concur: ROTHSCHILD, P. J., BENDIX, J.