Opinion
D072653
09-18-2018
KARL ECKSTINE, Respondent, v. JENNIFER MOORES, Appellant.
Stephen Temko for Appellant. Stephen M. Hogan; Feuerstein, Murphy & Beals and Bruce M. Beals for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DN185986) APPEAL from an order of the Superior Court of San Diego County, Jeannie Lowe, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Stephen Temko for Appellant. Stephen M. Hogan; Feuerstein, Murphy & Beals and Bruce M. Beals for Respondent.
This is an appeal from a need-based pendente lite award of attorney fees to be paid by Jennifer Moores (Mother) to Karl Eckstine (Father). (Fam. Code, §§ 2030, 2032.) The parties do not dispute that Mother has substantially more financial resources than Father. Rather, the discord related to this award turns primarily on whether the fees incurred and anticipated by Father are reasonably necessary to the litigation, in which a vehement child custody battle predominates. While Mother challenges the award on multiple individual grounds, all center on whether Father's attorney fees are inflated because he has overlitigated the case. This is an issue that the experienced trial judge, who presided over this matter almost since its inception, was uniquely qualified to resolve. Although the award made by the judge is sizeable, it is sufficiently supported by the evidence before the court both in light of the parties' submissions and the court's longstanding experience with the case. Accordingly, we affirm.
Further statutory references are the to the Family Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
Father and Mother married in November 2014. While they dispute the precise date of separation, the marriage lasted at most one year and one month, during which the couple had one child. Father filed for dissolution in February 2016, citing irreconcilable differences.
The most contentious issue in this dissolution action has been custody of the couple's son, who is by our estimate now three years old. After Mother accused Father of anger issues, a custody evaluation was commenced by stipulation in May 2016 and remains ongoing. Pending its outcome, Mother retains primary custody while Father is allotted certain weekly hours for supervised visitation. In addition to the allocation of custody, the parties have disputed various other matters with respect to the toddler, ranging from his schooling to the selection of supervisors for Father's visitation.
It is undisputed that Mother has "substantially more wealth" than Father. Her income has been variously estimated at an amount upward of $1 million per year, and her assets have been ballparked at $200 million. In contrast, Father earns approximately $77,000 per year. His only substantial assets are an IRA (individual retirement account) valued at approximately $85,000 and what remains of the $475,000 spousal support buyout that the parties stipulated to in October 2016 (approximately $373,000 as of late June 2017). But as Mother has since requested to amend her response to the dissolution in order to request nullification of the marriage, the support payment is hardly guaranteed. By stipulation, Mother paid Father $375,000 for attorney fees and costs related to this action between August 2016 and January 2017.
In May 2017, Father requested that Mother pay an additional $500,000 for his attorney fees pursuant to sections 2030 and 2032, contending that such an award was necessary for his "equal access to continued legal representation and litigation resources on par with [Mother's]." Both he and his counsel, Amanda Harris, provided supporting declarations. Mother opposed the request and filed a competing declaration of her own. Both Father and Harris responded with reply declarations; Father also filed an update to his initial declaration. Thereafter, Mother filed an update to her declaration as well. (In pursuit of readability, we proceed to discuss the substance of these filings interchangeably, rather than in a strictly chronological fashion.)
Harris, an attorney with 22 years of legal experience "almost exclusively" devoted to matrimonial and family law, characterized the action as a "high conflict custody case" involving disputed facts and raising spousal support questions dependent on "complex financial information and voluminous documentation." Two pages of her declaration summarized 25 categories of work the firm undertook on Father's behalf since their retention in March 2016. She identified the relevant hourly rates for herself, her associates and paralegal, and a certified family law specialist assisting them.
Harris also detailed the "extensive and ongoing" discovery. That included 52 subpoenas propounded by Mother; 10 depositions noticed by Mother (of which 8 had been conducted by the time of the hearing on attorney fees); nearly 40,000 pages in Mother's first production; and almost 1,000-page length of Mother's October 2016 income and expense declaration when combined with related exhibits. She pointed out that while Father's accountant had already analyzed Mother's 2012 to 2014 income, additional funds would be needed for the accountant to update the report with information from 2015. Harris also emphasized that the parties had not been seeing eye to eye as far as disclosures, each leveling allegations of Delphic behavior by the other. Mother's responsive declaration echoed this theme, albeit with predictably greater emphasis on Father's ostensible evasiveness.
Beyond the issues of discovery, Harris's declaration identified numerous motions filed by the parties to date, including nine by Father and eight by Mother. She highlighted Mother's motion to amend her response to the dissolution petition in order to request nullity, as it could result in a claw back of the previously stipulated spousal support buyout. Harris opined that "[p]reparing to defend against [Mother's] allegation of marriage fraud will involve multiple depositions, including depositions of witnesses residing in Texas, and testimony of out-of-state witnesses." Mother, for her part, asserted that the numerous filings were attributable to "unreasonable positions" Father adopted in the litigation and that the efforts of his attorneys were "entirely disproportionate to the results . . . achieved."
As to the bottom line, Father incurred $536,090.50 in attorney fees and $27,131.54 in costs as of mid-June 2017. He had exhausted the previous $375,000 provided by Mother and paid out his own pocket somewhere around $170,000; the balance remained due. Mother had paid $741,298 in attorney fees as of early July 2017—nearly $200,000 more than Father.
The motion for fees was decided by retired Commissioner Jeannie Lowe, who presided over the case by stipulation since late August 2016 as a privately compensated judge and heard substantially all of the litigated issues in the case. After nearly two and a half hours of argument, the court took the issue under submission.
The ensuing findings and order issued after the hearing (the order) spanned just over four pages. It emphasized that the case was "aggressively litigated by both sides" and that "[a]ll counsel involved are highly respected, very experienced and expensive family law attorneys." In addition, it acknowledged the extensive discovery and motion practice that had transpired in the past year. With respect to future expenses, the court highlighted the five-day trial anticipated upon completion of the custody evaluation, continuing child support issues given Mother's "complex income," Mother's pending request for nullity based on fraud, and Mother's outstanding motion to disqualify Father's counsel. Accordingly, the court concluded Father was entitled to an additional contribution from Mother to his fees, but only in the amount of $350,000.
The respondent's appendix includes a document executed after the notice of appeal in this action was filed. Mother moves to strike this item from the record on appeal and any related references to it in Father's briefing. We grant her request; the item has not been considered in this appeal. (See Reserve Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813 ["when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time judgment was entered"]; see also Blech v. Blech (2018) 25 Cal.App.5th 989, 992, fn. 2.)
DISCUSSION
The central issue in this appeal is the propriety of Father's $350,000 pendente lite attorney fee award. For a host of reasons, which we will explain and reject in turn, Mother contends the award was erroneous. But we start with an overview of the legal principles underlying these types of awards.
1. Foundational Legal Principles
Family Code section 2030 authorizes pendente lite attorney fee awards in family law cases. (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251 (Alan S.).) It provides, generally speaking, that the court may order one party to pay another's "reasonably necessary" attorney fees in order to "ensure that each party has access to legal representation." (§ 2030, subd. (a)(1).) The underlying aim is "parity: a fair hearing with two sides equally represented. The idea is that both sides should have the opportunity to retain counsel, not just (as is usually the case) only the party with greater financial strength." (Alan S., at p. 251; accord, In re Marriage of Cryer (2011) 198 Cal.App.4th 1039, 1056 (Cryer).) Simply stated, it's about "leveling the playing field." (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1315 (Tharp), internal quotation marks omitted.)
To that end, the trial court has "considerable latitude" in fixing an appropriate award. (Cryer, supra, 198 Cal.App.4th at p. 1054.) As one court has explained, "The vicissitudes of family proceedings dictate that trial judges must have maximum flexibility in ensuring that each party has the means to pay for counsel." (In re Marriage of Hobdy (2004) 123 Cal.App.4th 360, 371.) Especially in a case where issues of child custody pervade, the need to ensure adequate representation can hardly be overstated. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 318.)
Absent a clear showing that the court abused its discretion, we will not disturb its determination on appeal. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769; In re Marriage of Cueva (1978) 86 Cal.App.3d 290, 296 (Cueva).) "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 (2015) 242 Cal.App.4th 529, 532 (Smith).) We may overturn the trial court's decision " 'only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.' " (Ibid., quoting Cueva, at p. 296.)
Of course, the trial court's flexibility in this area still has its limits. A pendente lite fee award should not emanate from "a truncated process where the trial court simply (a) ascertains which party has the higher nominal income relative to the other, and then (b) massages the fee request of the lesser-income party into some manageable amount that feels like it will pass an abuse of discretion test." (Alan S., supra, 172 Cal.App.4th 238, 254.) Rather, the award "should be the product of a nuanced process in which the trial court should try to get the 'big picture' of the case." (Ibid.) "While no particular language is required in an order awarding fees under sections 2030 and 2032, the record (including, but not limited to, the order itself) must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion." (Ibid.; accord, In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866 (Keech).)
Both legislation and case law enumerate the pertinent considerations. (See In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827, fn. 30 (Braud).) Per section 2032, subdivision (a), the making of the award and the amount awarded must be "just and reasonable under the relative circumstances of the respective parties." (See also § 4320; In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 630.) Financial resources, however, are just one piece of the picture. (§ 2032, subd. (b); see In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 662-663.) The award cannot exceed what is "reasonably necessary for attorney's fees and for the cost of maintaining and defending the proceeding during [its] pendency." (§ 2030, subd. (a)(1).) In that vein, jurisprudence dictates that the trial court must also consider: the nature of the litigation; its difficulty; the amount involved; the skills required and employed in handling it; the attention given; the success of the attorney's efforts; his or her learning, age, and experience in the particular type of work demanded; the intricacies and importance of the litigation; the labor and the necessity for skilled legal training and ability in trying the cause; and the time consumed. (Cueva, supra, 86 Cal.App.3d at p. 296; accord, In re Marriage of Braud (1996) 45 Cal.App.4th at p. 827, fn. 30.)
We keep our discussion of the law regarding the relevant financial factors brief because Mother concedes the trial court "considered all the statutory factors under sections 2030 [and] 2032 as well as relevant section 4320 factors."
This framework presupposes, among other things, a " 'judicial evaluation of whether counsel's skill and effort were wisely devoted to the expeditious disposition of the case.' " (In re Marriage of Behrens (1982) 137 Cal.App.3d 562, 576 (Behrens); accord, In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1524 [same].) " 'Conscientious and successful efforts by counsel to resolve as many areas of disagreement as possible without judicial intervention [are] entitled to serious consideration.' " (Behrens, at p. 576; see also In re Marriage of Munguia (1983) 146 Cal.App.3d 853, 863 ["Reasonable value of services need not bear a direct relationship to the number of hours spent working on the case, because some hours may be unproductive, whereas others may be exceedingly valuable"].)
"Conversely, services which have no apparent effect other than to prolong and to complicate domestic litigation cannot be deemed 'reasonably necessary' [citation] 'to properly litigate the controversy.' " (Behrens, supra, 137 Cal.App.3d at p. 576; accord, In re Marriage of Turkanis & Price (2013) 213 Cal.App.4th 332, 356 (Turkanis & Price).) Simply stated, overlitigation is relevant. (Turkanis & Price, at p. 356.) The court need not, however, look at the requesting party's litigatory maneuvers in a vacuum: It "may . . . consider the other party's trial tactics [too]. (See In re Marriage of Dick (1993) 15 Cal.App.4th 144, 166-168 [(Dick)] [$750,000 award affirmed under predecessor of section 2032 because the record 'reveals a case of stunning complexity, occasioned, for the most part, by husband's intransigence'].)" (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167; accord, Tharp, supra, 188 Cal.App.4th at p. 1314.) After all, the goal here is parity. (Alan S., supra, 172 Cal.App.4th at p. 251; Cryer, supra, 198 Cal.App.4th at p. 1056.)
2. Analysis
Mindful of these background principles, we turn to the parties' specific arguments. Mother urges that the record was insufficient for the trial court to assess Father's past and future fees. She further argues the court (1) failed to consider whether Father's past expenditures were reasonably necessary and (2) improperly compared her incurred fees to Father's. She also claims these asserted errors—particularly with respect to the sufficiency of the record before the court—were compounded by the denial of her request to enforce a notice in lieu of subpoena seeking Father's billing records. This final contention, in her view, implicates her right to procedural due process.
a. State of the Record
We first consider Mother's arguments regarding the state of the record. She maintains that the trial court "could not exercise its discretion to determine whether the fees incurred were reasonable" because "the key facts were never presented to [it]." While Mother casts her claim as one subject to review for an abuse of discretion, it is at base—as Father argues—a challenge to the sufficiency of the evidence underlying the attorney fee award. (See Smith, supra, 242 Cal.App.4th at p. 532.)
Father initially argues that Mother's opening brief waived any substantial evidence challenge by failing to fairly summarize the evidence on both sides. Alternatively, he posits she waived her claim by failing to provide a complete record. We find neither of these initial contentions persuasive, and so proceed to address the merits of Mother's claims.
Mother's primary contention is that Father failed "to provide sufficient evidence of the attorneys who worked on the case, the hours they worked and the hourly rates applicable to each attorney." In light of this ostensible paucity of evidence, she urges it was improper for the trial court to rely on its own expertise in setting a reasonable fee. On this topic, she considers instructive Cueva, supra, 86 Cal.App.3d 290, and Keech, supra, 75 Cal.App.4th 860.
Cueva, supra, 86 Cal.App.3d 290 reversed an attorney fee award that "resulted from a default hearing that consumed perhaps 20 minutes in which no evidence of any kind was submitted to the court concerning the reasonable value of wife's attorney's services." (Id. at p. 300, footnote omitted.) Cueva explains that a trial court may "rely on its own experience and knowledge in determining . . . reasonable value" only when it first "is informed of the extent and nature of the services rendered." (Ibid.) Since "there was nothing before the trial court disclosing services of such a nature" that would support the awarded fees, the determination was reversed. (Id. at p. 304.)
Keech, supra, 75 Cal.App.4th 860 reached a similar result. There, "the [trial] court ordered husband to pay $25,000 of wife's fees on nothing more than wife's secondhand comment (albeit in a declaration) about what her latest 'bill' stated, and on wife's counsel's unsworn representation that she was owed 'approximately $35,000.' " (Id. at p. 869.) In addition, "the court made no inquiry into whether the [alleged] fees were . . . 'reasonably necessary' "; it failed to evaluate "the legal work done on wife's behalf despite husband's objection that, based on wife's own prior filings and requests for continuances of the OSC [(order to show cause)], it appeared much of the time was spent seeking to get file materials from prior counsel, 'reinventing the wheel,' or requesting additional continuances." (Ibid.) As in Cueva, supra, 86 Cal.App.3d 290, the trial court could not resort to its own expertise to determine a reasonable value since it "was not apprised of the nature and extent of the services rendered." (Keech, at p. 870.)
From those cases, we can accept that it is improper for a trial court to turn to its own generalized experience in the legal field to affix a fee award when it is "not [yet] apprised of the nature and extent of the services rendered." (Keech, supra, 75 Cal.App.4th at p. 870; accord, In re Marriage of Ward (1992) 3 Cal.App.4th 618, 628 (Ward).) This precept in no way contradicts the trial court's ability to rely on its own observations—i.e., experience specific to the case at hand—as evidence of the extent and nature of the services provided. (See In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 280 (Ananeh-Firempong) [" 'direct evidence of the reasonable value of attorney's services need not be introduced because such evidence is necessarily before the trial court which hears the case' "]; see also Lipka v. Lipka (1963) 60 Cal.2d 472, 479-480 [rejecting husband's argument "that the trial court abused its discretion in awarding attorney's fees to [wife] without the taking of evidence" because "the trial court could determine the amount of the fee from its own experience and from the facts and circumstances of the case, as they appeared from the pleadings and other papers"].) Cueva explicitly recognized as much: "In many cases the trial court will be aware of the nature and extent of the attorney's services from its observations of the trial proceedings and the pretrial and discovery proceedings reflected in the file." (Cueva, supra, 86 Cal.App.3d at p. 301; see also id. at p. 300, fn. 3.)
This principle is directly applicable here. Commissioner Lowe presided over the proceeding nearly since its inception. As the order makes clear, any reference to "the court's own experience in litigating and presiding over family law matters" included overseeing "this matter for the past year." (Cf. Ward, supra, 3 Cal.App.4th at p. 628 ["The trial judge, a former experienced family law practitioner, reviewed the entire record before awarding $3,000 in fees and costs"].) We cannot ignore this commissioner's undeniable familiarity with this litigation in assessing whether she was sufficiently apprised of the services rendered. (See Ananeh-Firempong, supra, 219 Cal.App.3d at p. 280.)
Moreover, here the court's firsthand experience presiding over the case was not the sole basis for determining the extent and nature of the services provided by Father's attorneys. A host of declarations were provided in support of the requested award. They detailed at length the discovery efforts and motions undertaken, as well as previewed litigation to come. Beyond that, approximately two and half hours of argument was heard before the matter was taken under submission. This is simply not a case like Cueva, supra, 86 Cal.App.3d 290 or Keech, supra, 75 Cal.App.4th 860, both of which entailed a dearth of competent evidence to support the requested fees.
Contrary to Mother's assertions, no billing statements—or other evidence of a commensurate level of specificity—were necessary under the facts of this case to demonstrate how past fees were expended. Indeed, as her cited authorities recognize, "[i]n California, an attorney need not submit contemporaneous time records in order to recover attorney fees." (Martino v. Denevi (1986) 182 Cal.App.3d 553, 559 (Martino).) Mother also faults Harris's declaration for failing to inform the court "who worked on what tasks, what their hourly rates were, or how many hours were worked." Although best practices might encourage that level of specificity, we simply have found no such onerous requirement in the case law—at least in a case like this where the court already has abundant information otherwise before it. To the contrary, courts regularly uphold fee determinations without hourly breakdowns. (E.g., Ananeh-Firempong, supra, 219 Cal.App.3d at p. 280 [upholding attorney fee award which was based on "court's finding that Wife's counsel had made 19 court appearances, participated in a four day trial and been well prepared"]; In re Marriage of Quoid (1991) 9 Cal.App.4th 1353, 1361 [concluding "[c]ounsel's statements to the court were sufficient to establish the value of his services"].)
Martino, supra, 182 Cal.App.3d 553 is another of Mother's favored authorities. In the partnership dissolution action at issue there, the trial court awarded $40,000 in attorney fees to the defendant. (Id. at p. 558.) That decision did not withstand appeal since "[t]he only evidence presented in support of the motion for attorney fees was the attorney's request for a flat fee for 'services rendered.' No documents, such as billing or time records, were submitted to the court, nor was an attempt made to explain, in more general terms, the extent of the services rendered to the client. At oral argument, defendant's attorney admitted he determined the fee to be paid by his clients based on a general 'feeling' about the case and the amount of work done on the client's behalf, and not by referring to detailed time or billing records." (Id. at pp. 559-560.) We find Martino distinguishable for the same reason that we do Keech, supra, 75 Cal.App.4th 860 and Cueva, supra, 86 Cal.App.3d 290.
Mother also considers instructive In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, which states, "The party seeking fees and costs bears the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates. [Citations.] To that end, the court may require a defendant to produce records sufficient to provide a proper basis for determining how much time was spent on particular claims. [Citations.] The evidence should allow the court to consider whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended. [Citations.]" (Id. at p. 695, internal quotation marks and brackets omitted.) First of all, we note that Nassimi's reference to production of billing records is merely permissive. But more importantly, that case is procedurally distinct. There, the court had to distinguish between certain defense expenses, which were a community obligation, from expenses incurred in pursuit of counterclaims, not traceable to a community obligation. (Id. at pp. 671-672.) Mother likewise relies on several cases from other contexts as setting forth a similar standard. (See, e.g., Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) These cases too are procedurally distinct.
We are similarly unpersuaded by Mother's corresponding challenge to the portion of the award that was based on future expenditures. As we understand her argument, Mother posits that identification of "anticipated hours," as well as "which attorney at what hourly rate" would work them, was required. But again, the case authority interpreting section 2030 does not require such detail. (See Dick, supra, 15 Cal.App.4th at p. 168; In re Marriage of O'Connor (1997) 59 Cal.App.4th 877, 883-884 (O'Connor).) Rather, we think what Father provided regarding anticipated future tasks, when coupled with Commissioner Lowe's background in handling this case and extensive experience with family law matters generally, provided a more than sufficient basis to assess his prospective litigatory needs. (Cf. Dick, at p. 167 ["the judge who sat by stipulation was formerly a supervising judge of the Family Law Department of the Los Angeles Superior Court and, therefore, particularly well-qualified to make a rational assessment of wife's future litigation needs"]; O'Connor, at pp. 883-884 ["The trial court was eminently well qualified to rule on husband's request for additional attorney's fees and costs, having previously ruled on several motions brought by wife for summary adjudication of issues, and having at three separate hearings considered the parties' extensive factual arguments on their cross-motions for attorney's fees"].)
Mother attempts to distinguish Dick, supra, 15 Cal.App.4th 144 because there, the wife's "requests were supported by lengthy declarations and copies of billings." (Id. at p. 167.) While billings provided additional support for her requests, we do not read the case as finding their presence dispositive. The court explained, "Quite apart from declarations and billing statements, the record of this trial, which exceeds 5,000 pages in reporter's transcripts and appendices, is also a monument to the complexity of this case. Both the record and the enormity of the fees which wife has already paid, support the trial court's award of future fees." (Id. at p. 168, footnote omitted.)
Finally as to the future fees, we decline Mother's invitation to second guess the trial court's decision based on her surmise of reasonable hourly estimates for anticipated work. Given that substantial evidence was already present to support the award, a recalculation on a cold record based on newly constructed estimates by the opposing party is unwarranted. (See Smith, supra, 242 Cal.App.4th at p. 530.)
b. Possibility of Overlitigation
In a similar fashion, Mother contends the court focused exclusively on the disparity of financial resources between the parties and so did "not adjudicat[e] the issue of reasonableness (whether counsel's skill and efforts were wisely devoted to the case as contended by [Mother])." (See § 2030, subd. (a)(1) [requiring that fees awarded be "reasonably necessary"]; Turkanis & Price, supra, 213 Cal.App.4th at p. 356.) Looking at the materials before the court and the detailed written findings and order issued after the hearing, we remain satisfied that the trial court made the proper inquiries.
Mother's briefing on appeal maintains Father "argued reasonableness of fees was not a factor" to be considered at all in the context of a section 2030 motion. Yet the page of the record cited to support that representation solely features argument by her counsel. We have been unable to locate the cited reference elsewhere in record.
As we have already explained, Commissioner Lowe was well, if not perfectly, situated to assess the reasonableness of the fees incurred. She made explicit that "[i]n analyzing what would be a reasonable contribution from [Mother], the court has considered not only the amount of fees expended to date but the manner in which the parties have litigated this case during this past year." The order explained further that the case was "aggressively litigated by both sides," with extensive discovery, expensive counsel, and intensive motion practice.
To the extent Mother contends "[t]here was strong indication in the record that the attorney fees incurred by [Father] were not 'reasonably necessary,' " we see this as nothing more than a plea to reweigh the contentions proffered in the parties' competing declarations. Mother's declaration accused Father of "aggravat[ing] the controversy, litigat[ing] minutia, and refus[ing] all semblance of reasonable compromise and proceed[ing] with ongoing, relentless, and unending litigation." Father, in turn, declared it was Mother's " 'scorched-earth' approach to litigating this case" that had prolonged the lawsuit, "making [his] attorneys jump over unnecessary hurdles." It was for the trial court to decide which narrative prevailed and how it impacted the reasonableness of the fees sought. (See Smith, supra, 242 Cal.App.4th at p. 530.) In this regard we note that the court did not award the full amount requested by Father, and this supports the conclusion that Commissioner Lowe fully considered reasonable necessity in making her order. This is simply not, as Mother suggests, a case where a "blank check" was issued to fund Father's litigation.
c. Comparison of Fees
The trial court's order included a finding that Mother had at that point in time, "out spent [Father] by thirty-eight percent (38%) on attorney[ ] fees alone. [Father] clearly lacks the financial resources to keep pace with [Mother]." Relying on Keech, supra, 75 Cal.App.4th 860, Mother contends that the amount she had spent was "not a proper factor" for the court to weigh.
We think Mother overreads Keech, supra, 75 Cal.App.4th 860. There, the trial court required the husband to pay $25,000 of the wife's $35,000 attorney fee bill, but "made no inquiry into whether the [wife's] fees were . . . 'reasonably necessary.' " (Id. at p. 869.) Noting that the husband's own fees were approximately $25,000, the appellate court was concerned that the trial court simply decided "to require husband to pay at least as much for wife's attorney fees as he did for his own." (Ibid.) "That," Keech emphasizes, "is not the standard by which the court was to determine the amount of the award." (Ibid.)
In our view, this passage from Keech thus stands for the unremarkable proposition that in ruling on a section 2030 request, a trial court cannot look at a comparison of the parties' expenditures in isolation. That did not happen here. In this case, the trial court's reference to Mother's expenditures was made in conjunction with analyzing other key factors, chief among them the nature of the litigation and an assessment of the other party's litigation tactics. (See Cueva, supra, 86 Cal.App.3d at p. 296; Tharp, supra, 188 Cal.App.4th at p. 1314.)
Specifically, we observe it would not be appropriate to contrast the parties' fees without remaining mindful that the magnitude of one side's expenses might be symptomatic of the other side's overlitigation. But as we have explained, we are satisfied that the trial court considered and weighed the potential for overlitigation by Father.
Moreover, Commissioner Lowe's reasoning is wholly consistent with comments made by other courts in this context. (See Cryer, supra, 198 Cal.App.4th at p. 1056 [noting the $40,000 fee award was "considerably less than the amounts charged by [husband's] attorneys to litigate against [wife]"]; see also In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1221 ["If [husband] can afford to pay his own attorneys according to the above agreement, the trial court should be able to fashion a pendente lite award of attorney fees and costs to assure [wife] reasonably equal representation"].) Indeed, the most salient point here may be the magnitude of the difference between Mother's and Father's attorney fee expenditures. Given that the underlying purpose of the statute is functional (and not mathematical) parity (Alan S., supra, 172 Cal.App.4th at p. 251), we cannot deem comments of this nature misplaced when made in the context of an otherwise comprehensive analysis of the required factors.
d. Notice in Lieu of Subpoena
Mother's arguments on appeal compel us to address the notice in lieu of subpoena served on Father seeking his personal appearance and production of documents at the hearing on attorney fees. (See Code Civ. Proc., § 1987, subds. (b), (c).) Among other things, the notice requested all documents "reflecting [Father's] employment of legal counsel and any experts . . . in connection with this action," including "any and all bills and invoices from [his] current counsel for all services to date."
Father did not bring those documents to the hearing. And so, at the outset, Mother's lawyer stated he was "not prepared to argue" the issue of attorney fees. After hearing the parties' arguments as to whether the information was necessary to the determination at hand, the court opined:
"I have the ability to determine reasonableness of fees. I'm cognizant of the fact that [Mother] has a right to see the billings, albeit that they're redacted. I have often seen redacted billings. I don't find them particularly necessary today to go forward with this motion, so I'm going to overrule the objections at this point in time. And we will probably revisit the issue down the line with respect to attorney's fees.(Italics added.) The court then turned to the merits of the motion. Similarly, the order would later state, "The absence of billing statements alone . . . has not impaired the court's ability to determine a reasonable attorney fee award."
"I don't think this is the last chance I'm going to get to look at attorney's fees in this matter. I will be determining the reasonableness of the fees being spent in the future."
In Mother's view, "the court . . . denied [her] demand for billing records." She dedicates a considerable portion of her appellate briefs to arguing that Father waived his ability to challenge the request since he did not object within five days. Mother further contends that Father's failure to produce billing records compounded the trial court's purported error in assessing fees on an incomplete record. Alternatively, she argues that she was denied procedural due process insofar as the billings might have provided important rebuttal evidence.
There are several problems with Mother's claim. Foremost, we question her characterization of the episode as the trial court failing to enforce her notice in lieu of subpoena. As we read the record, it appears her counsel was effectively requesting a continuance of the hearing until such documents were produced—without specific regard to whether their hypothetical production would be voluntary or compelled by later motion practice. No express oral motion for enforcement was made.
For that matter, it is unclear whether an oral motion would even be procedurally sufficient to compel production of the requested documents on these facts. Subdivision (c) of section 1987 contemplates a specific enforcement procedure when the party subject to the request objects: "Thereafter, upon noticed motion of the requesting party, accompanied by a showing of good cause and of materiality of the items to the issues, the court may order production of items to which objection was made, unless the objecting party or person establishes good cause for nonproduction or production under limitations or conditions." While Mother makes much of the fact that no objections were served in five days, the statute explicitly provides that written objections are required "[w]ithin five days [after service], or any other time period as the court may allow." (§ 1987, subd. (c), italics added.) Father is correct in observing that "[Commissioner] Lowe has clearly not decided yet whether she will impose a five-day limit, having deferred the entire issue of production to a later date."
Mother relies on Shell Oil Co. v. Superior Court (1975) 50 Cal.App.3d 489 to argue that a request for additional time to object must be made within five days. In Shell, the requesting party moved to strike objections to a Code of Civil Procedure section 1987, subdivision (c) notice as untimely. (Id. at p. 490.) Agreeing that the objections were untimely, the trial court ordered compliance with the request. (Ibid.) The appellate court concluded that since the objections were served by mail, the time to object was extended an additional five days pursuant to Code of Civil Procedure section 1013. (Id. at p. 491.) Mother reasons that "there would have been no need to litigate the service issue in the Shell case at all" if the responding party "could have moved to extend the time to object after the five days had expired." While a creative argument, we are unpersuaded. Shell says nothing about a trial court's discretion to allow additional time; there, the trial court apparently declined to exercise that discretion in such a way.
In light of our conclusion that this issue remains to be fully adjudicated by the trial court, we need not and do not address the substance of the parties' arguments regarding whether any attorney-client privilege was waived.
Furthermore, as we have already explained at length, the billing records were not necessary to determine a reasonable fee. We are left then with Mother's claim that even if the billings were unnecessary for the initial determination, their absence violated her right to procedural due process because she may have been denied important rebuttal evidence. Mother never explains why she noticed production of the billing records for the day of the hearing rather than seeking to review them before completion of the briefing process. The fact that Mother's counsel filed all opposition papers without this evidence, and stated that he planned to have his staff review the materials during the subject hearing, might cause one to question even his subjective belief that this was truly critical evidence. In any event, we find Mother's claim unpersuasive for other reasons.
While we do not pass judgment on the ultimate validity of the notice in lieu of subpoena, we observe that "[f]or discovery purposes, a party may compel document production by reasonably describing a category of documents (e.g., 'all correspondence between Jones and Smith relating to the XYZ transaction'). [Citation.] [¶] But to obtain production at trial, the description must be 'exact' (e.g., 'letter dated June 21, 1990, written by Harry A. Jones to Paula Smith, captioned "Re XYZ" and marked as Exhibit "A" in Smith's deposition'). [¶] . . . This prevents parties from using a 'notice to produce' for discovery purposes after discovery is closed." (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2017) ¶¶ 1:115-1:115.1, p. 1-33.)
In support of this argument, Mother relies heavily on Lammers v. Superior Court (2000) 83 Cal.App.4th 1309 (Lammers), a case in which this court held that the appellant was denied procedural due process by the trial court's misapplication of a "pre-read" rule. (Id. at p. 1327.) Relying on this rule, the trial court decided a motion "without first completely reviewing the relevant evidentiary record." (Id. at p. 1329.) We explained that litigants were "entitled to procedural due process, that is, the right to be heard in a meaningful manner and to an adjudication following consideration of all relevant, proffered, competent evidence." (Ibid.) Nevertheless, we concluded that the appellant suffered insufficient prejudice because "the court's error in failing to review the evidentiary record before making the temporary order was cured at the later hearing." (Id. at p. 1330.)
This case is very different from Lammers, supra, 83 Cal.App.4th 1309. This is not an instance where the trial court declined to review and consider properly submitted evidence. Rather, based on speculation that her counsel might—during the hearing on the motion—find something useful in the requested documents for rebuttal purposes, Mother would have us conclude her procedural due process rights were impaired. They were not. Given her intimate familiarity with the facts of the case and issues on the motion, Commissioner Lowe properly concluded that the remote possibility the billing records would yield important information did not justify a continuance of the hearing.
And even assuming this alleged error implicated Mother's procedural due process rights, there was no substantial prejudice. We see nothing to prevent the parties from, as the trial court explicitly indicated, "revisit[ing] the issue down the line with respect to attorney's fees." (See O'Connor, supra, 59 Cal.App.4th at p. 884 ["the court acknowledged that, as a pendente lite award, it was subject to revision in the future"].) In this context, " '[n]o single fees and costs order is an "all or nothing" proposition. Need-based awards may be augmented or modified as necessary during the entire pendency of the case, consistent with the parties' "relative circumstances." ' " (Cryer, supra, 198 Cal.App.4th at p. 1056.) Subdivision (c) of section 2030 explicitly provides: "The court shall augment or modify the original award for attorney's fees and costs as may be reasonably necessary for the prosecution or defense of the proceeding, or any proceeding related thereto, including after any appeal has been concluded." This is all to say, should Mother ultimately discover relevant "rebuttal" evidence, Commissioner Lowe's order and the statutory scheme contemplate her ability to request an appropriate modification.
DISPOSITION
The order is affirmed. Respondent shall recover costs on appeal.
DATO, J. WE CONCUR: HALLER, Acting P. J. IRION, J.