Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. DN130193, Harry L. Powazek, Judge.
HALLER, J.
Joshua Parker, representing himself, challenges the trial court's orders dismissing his order to show cause for contempt (contempt OSC) and ordering him to pay sanctions. Parker filed the contempt OSC against the attorney representing his former spouse (Seana Montes) in postjudgment dissolution proceedings. After dismissing the contempt OSC, the trial court awarded sanctions against Parker for filing the contempt OSC. We affirm the trial court's orders and grant Montes's request for sanctions on appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The issues before us in this appeal concern Parker's attempt to hold Montes's attorney (Richard Ravreby) in contempt of court after Attorney Ravreby distributed sale proceeds from the sale of a community property asset.
Trial Court's Orders Concerning Disbursement of the Sale Proceeds
After the parties' marriage was dissolved, property issues were resolved in a judgment entered in May 2007. The judgment included an order for the sale of a community asset commercial building (the Balboa Building). Under the terms of the judgment, the sale proceeds from the Balboa Building were to be deposited into a trust account and the final equalization calculations were to be made after the sale was completed.
On May 24 and August 6, 2007, Parker filed appeals challenging the property judgment and a postjudgment order. While the appeals were pending, an offer was made for the purchase of the Balboa Building, and escrow was opened. On November 26, 2007, Montes filed a motion requesting disbursement of the proceeds upon the sale of the building. On December 14, 2007, Parker filed a motion requesting a stay of the division of the sale proceeds, arguing that the trial court had no jurisdiction over the matter until the pending appeals were decided. Montes opposed Parker's request for a stay, noting that in August 2007 Parker had himself filed a motion requesting a postjudgment disbursement ruling, in which he requested an order that would accommodate his plans for an Internal Revenue Code section 1031 (section 1031) real estate exchange with his share of the Balboa Building sale proceeds.
In January 2008, the court granted Parker's request that pending resolution of his appeals the trust account funds not be disbursed, on the condition that Parker post a $75,000 bond. The January 2008 order provided that Montes's share of the proceeds from the sale of the Balboa Building be deposited into an interest bearing account, and that Parker's share of the proceeds be deposited and held by the section 1031 accommodator designated by Parker pending court order. However, if the bond was not posted, the court ordered that "the funds will be disbursed per the Court's prior orders."
On February 4, 2008, the court ordered that the required bond be posted within one week. The February 4 order also provided for a partial division of the Balboa Building sale proceeds, providing that $450,000 be deposited with Parker's section 1031 accommodator, $300,000 be deposited on behalf of Montes into Montes's attorney's trust account, and the balance of the sale proceeds be placed into a trust account on behalf of the parties. Anticipating that a bond would be posted, the February 4 order reiterated the court's issuance of a stay on disbursement to the parties; i.e., providing that without further court order, written agreement of the parties, or pending the appeals, the $450,000 transferred to Parker's section 1031 accommodator was not to be released for reinvestment by Parker, and the $300,000 transferred to Montes's attorney on behalf of Montes was not to be released. On February 6, 2008, the court reissued essentially the same order.
Parker did not post the bond ordered by the trial court to stay the disbursement of the trust account funds. On February 15, 2008, the trial court entered an order superseding its February 4 and 6, 2008 orders. In this new order, the trial court lifted the stay on disbursement of the funds to the parties, and ruled that: (1) $300,000 of the sale proceeds be transferred to Montes's attorney and released to Montes pursuant to previous court order; (2) $430,000 of the sale proceeds be transferred to Parker's accommodator for purposes of his section 1031 exchange with no restrictions on release; and (3) the balance of the sale proceeds be transferred to Montes's attorney to be placed into a joint account and held for the parties pending further court order or written agreement of the parties.
On February 21, 2008, Parker filed a third appeal contending that because of the pending appeal concerning the property judgment, the trial court had no jurisdiction to render rulings concerning the proceeds from the sale of the Balboa Building. The trial court did not issue an order staying disbursement of the sale proceeds based on the February 21, 2008 appeal. Thus, the February 21 appeal had no effect on the February 15 order requiring a partial disbursement of the funds to the parties. On December 23, 2008, we filed our decision rejecting Parker's contention that the trial court did not have jurisdiction to render rulings concerning the sale proceeds.
Parker's Contempt OSC Based on Disbursement of the Sale Proceeds and Montes's Motion for Sanctions
On February 21, 2008, the title company issued the closing statement for the sale of the Balboa Building. The closing statement reflected that $430,000 had been sent to Parker's section 1031 accommodator; $300,000 to Attorney Ravreby's trust account on behalf of Montes; $20,812.50 to the Franchise Tax Board for Montes's taxes; and $80,106.23 to Ravreby for the parties' joint trust account. On February 26, 2008, Ravreby sent a copy of the closing statement to Parker, and explained in an accompanying letter that the escrow company had paid Montes's potential taxes from the sale ($20,812.50) directly to the Franchise Tax Board, whereas the taxes should have been deducted from Montes's $300,000 share. To correct this, Ravreby stated that he had deducted $20,812.50 from Montes's $300,000 share and deposited that amount into the parties' joint trust account, and that the joint trust account now totaled $104,918.73.
On February 27, 2008, Montes filed a motion to designate Parker as a vexatious litigant and requesting an award of attorney fees as sanctions under Family Code section 271. To support her motion, Montes delineated his "repeated, duplicative, harassing, and improper legal actions," including moving to disqualify her counsel; filing an unlawful detainer action which subjected her to eviction proceedings; filing a contempt action against the title company; filing numerous meritless ex parte applications; seeking to remove a receiver appointed by the court; seeking to remove the trial judge; and filing numerous appeals.
Subsequent statutory references are to the Family Code unless otherwise specified.
In a letter dated March 3, 2008, Attorney Ravreby responded to an inquiry from Parker and reiterated that the amount in the parties' joint trust account included the $20,812.50 deducted from Montes's share based on the mistake made by the escrow company. Ravreby also provided Parker with a copy of the deposit slip showing the $20,812.50 had been deposited into the parties' joint trust account.
On March 6, 2008, Parker filed a contempt OSC against Attorney Ravreby. Parker asserted that Ravreby had (1) violated the court's February 15, 2008 order because he had disbursed $20,812.50 to Montes; and (2) violated the court's February 4, 2008 order because he did not set up a trust account for the $300,000 but instead distributed the money.
On March 12, 2008, Attorney Ravreby sent a letter to Parker requesting that he withdraw the contempt OSC, and stating that he would request sanctions if the contempt OSC was not withdrawn. Ravreby set forth the factors showing the contempt OSC was baseless, including Parker's failure to post the bond required to stay disbursement of funds under the February 4 and 6 orders and the February 15 order requiring disbursement.
Parker did not withdraw the contempt OSC. Accordingly on April 2, 2008, Montes filed a sanctions motion requesting $9,933.75 in attorney's fees and costs. Further, on April 23, 2008, an attorney representing Attorney Ravreby filed a motion to discharge the contempt OSC, arguing the court had no jurisdiction over the matter because Ravreby was not a party to the action and there was no prima facie showing of contempt because Ravreby had not disobeyed any court orders.
Trial Court's Rulings
At a hearing on May 27, 2008, the court found that it had jurisdiction over Attorney Ravreby for purposes of the contempt OSC. However, the court granted Ravreby's motion to dismiss the contempt OSC with prejudice, finding there was no possibility that Parker could establish contempt. The court noted that the February 4 order was superseded by the February 15 order, and the closing statement for the sale of the Balboa Building reflected that it was the escrow company, not Ravreby, that paid $20,812.50 to the Franchise Tax Board. In its order dismissing the contempt OSC, the court also ruled that Parker was prohibited from bringing further action against Ravreby based on any of his acts related to the sale of the Balboa Building and the disbursement of the sale proceeds.
The trial court took Montes's vexatious litigant motion and two requests for sanctions under submission, and issued its decision on June 13, 2008. The court denied the vexatious litigant motion and the accompanying request for sanctions, ruling that although Parker's conduct throughout the proceedings was unacceptable, the appropriate remedy was sanctions not the vexatious litigant statutes. With regard to Montes's request for sanctions arising from the contempt proceeding, the court awarded sanctions under section 271. To support its ruling, the court stated that the contempt OSC was filed shortly after Montes filed the vexatious litigant motion; the likelihood of Parker's success in the contempt OSC was "minimal at best"; Parker had previously been sanctioned pursuant to section 271 and had incurred punitive damages in a separate civil action filed by Montes's father; Parker had "maintained a clear course of action which has caused unnecessary substantial litigation and attorney fees and costs on [Montes's] part"; and the contempt OSC was a "further act in said course of conduct." The court ordered that Parker pay $9,500 sanctions, payable at Montes's option through the equalization payments from the Balboa Building sale proceeds or through a payment plan of $500 per month.
DISCUSSION
On appeal, Parker challenges the dismissal of the contempt OSC, the award of sanctions, and the amount of sanctions awarded.
Dismissal of the Contempt OSC
The record supports the dismissal of the contempt OSC with prejudice because there was no prima facie showing that Attorney Ravreby failed to comply with a court order and no possibility that such a showing could be made. (See Code Civ. Proc., §§ 1209, subd. (a)(5), 1211, subd. (a); N.Y.K. Oil Co. v. Superior Court (1936) 11 Cal.App.2d 607, 609; Mossman v. Superior Court (1972) 22 Cal.App.3d 706, 709; 14 Cal.Jur.3d (2008) §§ 59-60, pp. 128-134 [court's jurisdiction to determine contempt requires affidavit setting forth prima facie showing of contempt].)
The exhibits attached to Parker's contempt OSC conclusively showed no contempt. These exhibits included the February 15 order requiring a partial disbursement of the sale proceeds and explicitly stating that it superseded the February 4 order which had stayed disbursement. Thus, Attorney Ravreby did not violate any court orders when he disbursed the specified amount of funds to both Parker (via the section 1031 accommodator) and Montes. Further, the exhibits attached to the contempt OSC showed that, contrary to Parker's allegations, Ravreby did not distribute $20,812.50 to Montes. These exhibits included the closing statement from the title company showing that this amount was paid to the Franchise Tax Board through escrow; Ravreby's letter informing Parker of the error and indicating that the error had been corrected by deducting the $20,812.50 from Montes's $300,000 share and placing it in the parties' joint account; and a deposit slip reflecting the $20,812.50 deposit into the parties' joint account. Because the contempt OSC and attached exhibits showed no possibility that Ravreby had committed contempt, the trial court properly dismissed the contempt OSC.
To support his position that Attorney Ravreby violated the court's order by disbursing the $300,000 to Montes, Parker quotes the language in the February 15 order which states: "It is further ordered that from the sale proceeds, escrow shall transfer to [Montes's] Attorney, Richard R. Ravreby, to be released to [Montes], the sum of $300,000. These monies are released pursuant to previous court order." (Italics added.) The phrase "pursuant to previous court order" was handwritten by the trial court and replaced a crossed-out phrase "without restrictions." Parker apparently construes the phrase "pursuant to previous court order" to mean the monies are released pursuant to the February 4 order prohibiting release to the parties. Given that the February 15 order explicitly states that it supersedes the February 4 order, and given that the February 15 order was designed to allow release of a portion of the sale proceeds to the parties (including $430,000 to Parker via his accommodator), this interpretation is unsupported.
Parker also asserts that his due process rights were violated because the trial court did not consider an amended contempt OSC that he filed on May 14, 2008. Montes objected to the amendment, and the trial court's order dismissing the contempt OSC refers only to the original contempt OSC. Thus, it appears the trial court declined to permit the amendment. (See Code Civ. Proc., § 1211.5, subd. (b) [trial court may permit amendment to affidavit in support of contempt OSC].)
Even if, arguendo, the trial court should have permitted the amendment, consideration of the amended contempt OSC does not alter our conclusion that the dismissal with prejudice was proper. The amended contempt OSC states that Attorney Ravreby violated the court's February 15 and February 4 orders by moving $20,812.50 out of the $300,000 in trust and by disbursing the $300,000 to himself and Montes. These are essentially the same allegations as in the original contempt OSC, and for the same reasons do not show a violation of the court's orders.
In his amended contempt OSC, Parker refers to a March 26, 2008 motion wherein Montes asked for sanctions in Parker's appeal from the property judgment because by filing the appeal Parker had "successfully stayed the enforcement of most of the trial court's orders and successfully delayed the disbursement of funds to [Montes]." The statement in this motion does not show that Attorney Ravreby violated a court order when he disbursed a portion of the Balboa Building sale proceeds as directed by the February 15, 2008 order.
Parker also challenges the trial court's order dismissing the contempt OSC because it includes an order prohibiting "further action against [Attorney] Ravreby based on any act by [Attorney] Ravreby related to the sale of the Balboa building and disbursement of the net sale proceeds from that transaction." At oral argument, Parker asserted the trial court never made such a ruling at the May 27 hearing and that Ravreby improperly inserted this language into the written order so as to provide himself with broad immunity. We are not persuaded. On June 26, the trial court signed the written order dismissing the contempt OSC, and thereby indicated that it was satisfied that the language reflected the oral rulings it made at the May 27 hearing. Further, the language of the order does not confer a broad immunity on Ravreby. Rather, it is narrowly tailored to solely preclude further actions against him concerning the sale of the Balboa Building and disbursement of the sale proceeds. Given that the court had ordered the sale of this asset and disbursement of the sale proceeds in a specified manner, and that Parker had filed a baseless contempt OSC against Ravreby merely in response to his implementation of one of these orders (see discussion below), it was reasonable for the court to preclude Parker from filing any further actions against Ravreby concerning this asset.
Award of Sanctions
The record also supports the award of sanctions under section 271. Section 271, subdivision (a) authorizes a trial court to award attorney fees and costs as sanctions based "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." Sanctions may be awarded for unreasonable conduct that frustrates the policies of settlement and increases the costs of litigation. (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 990-991, disapproved on other grounds in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097.) On appeal, we review a sanctions order for abuse of discretion. (In re Marriage of Abrams, supra, 105 Cal.App.4th at p. 991.)
Based on our review of the record, Parker's contempt OSC was wholly without merit and justified the award of sanctions. There was no reasonable basis for Parker to have alleged that Attorney Ravreby should not have distributed to Montes her share of the proceeds as designated in the court's February orders. No reasonable person could have understood the February 4 stay order not to have been superseded by the February 15 order. Indeed, if Ravreby had not distributed the funds to Montes as directed by the February 15 order, he would have failed to comply with that order. Further, there was no reasonable basis to allege that Ravreby had improperly distributed $20,812.50. The closing statement from the title company, which was provided to Parker, showed this amount was distributed through escrow to the Franchise Tax Board on behalf of Montes. Ravreby promptly notified Parker that he corrected the mistake by deducting this amount from Montes's share and depositing it into the parties' joint trust account. Ravreby also provided Parker with copies of the deposit slips showing that $20,812.50 had been deposited into the joint account.
The trial court acted well within its discretion in concluding that when Parker filed the contempt OSC, this was a continuation of his prior unreasonable conduct and that this unnecessarily increased Montes's cost of litigation. Parker had in his possession documentary evidence conclusively showing the contempt OSC was improper. Attorney Ravreby specifically requested that Parker withdraw the contempt OSC, explained the basis for his request, and advised Parker that if he did not withdraw the OSC Montes would request sanctions. Thus, Parker was on notice that he could be charged with paying the attorney fees he had unnecessarily caused Montes to incur as a result of the contempt OSC. Because the contempt OSC had no merit and Parker ignored Montes's good faith request to withdraw the OSC, the trial court had ample grounds to find that the contempt OSC was another legal tactic that warranted sanctions.
Parker also challenges the $9,500 amount of sanctions awarded by the trial court. When filing the sanctions motion on behalf of Montes, Attorney Ravreby included a declaration delineating $9,933.75 fees he and two other attorneys were due for their work responding to the contempt OSC and presenting the sanctions motion. The fees were for reviewing the contempt OSC; working on a response; drafting letters to Montes and Parker; consultations between the attorneys; meeting with Montes; preparing for and attending the contempt hearing; preparing the sanctions motion; reviewing and replying to Parker's response to the sanctions motion; attending the sanctions hearing; and costs for filing and service of the sanctions motion.
Parker challenges the amount of the sanctions because some of the fees listed in Attorney Ravreby's fee declaration were based on time estimates for work that had not yet been completed. The fees based on time estimations constituted $2,840 of the requested $9,933.75, and allotted eight hours for reviewing and replying to Parker's response to the sanctions motion and for preparing and attending the hearing on the contempt OSC and sanctions motion. A trial court has broad authority to determine the amount of reasonable attorney fees, and an " ' "experienced trial judge is the best judge of the value of professional services rendered in his court...." ' " (PCLM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) There is no showing that the time estimations in the fee declaration were excessive. Further, the record reflects additional work generated by the contempt OSC that was performed after the filing of the fee declaration but was not included in the time estimations. Additionally, the trial court awarded $9,500 sanctions, which was $433.75 less than the $9,933.75 calculated in the fee declaration. Parker has not carried his burden to show that the trial court abused its discretion in setting the amount of the sanctions.
For example, after the fee declaration was filed, Parker filed several additional documents seeking to justify the contempt OSC, and Montes filed replies to these documents. Additionally, after being directed by the trial court to do so, the attorneys filed a written motion to discharge the contempt OSC and filed final orders reflecting the trial court's rulings. These matters were not specifically delineated in the fee declaration.
Parker asserts he cannot afford to pay $500 per month towards the sanctions. In deciding the issue of sanctions, the trial court is required to consider the parties' financial situations and should not order a sanction that would impose an unreasonable financial burden on a party. (§ 271, subd. (a).) In its decision awarding sanctions, the trial court stated it had reviewed Parker's income and expense declaration. The declaration reflects gross monthly earnings of $9,125. Given his substantial monthly income, Parker has not shown the $500 monthly payment plan was an abuse of discretion.
Parker raises numerous additional arguments concerning the award of sanctions. The basis and logic of his arguments are frequently difficult to decipher. He argues for reversal based on contentions that the parties were not ordered to meet and confer; the sanctions motion should not have been filed prior to the outcome of the contempt OSC; it was inconsistent to award sanctions when he was not found to be a vexatious litigant and was not found to have filed a motion that was "totally without merit"; Montes did not prevail given that the contempt OSC was dismissed and was never heard on the merits; fees should not have been awarded for an issue on which he prevailed (i.e., jurisdiction over Attorney Ravreby); he should not have been sanctioned based on past conduct; at most only $500 should have been awarded for fees; no cost declarations were filed by the attorneys who appeared on behalf of Ravreby; Montes should not be awarded sanctions because Ravreby hired the attorneys to represent him; and the provision in the final sanctions order making the attorney fees payable to Ravreby was inconsistent with the court's award of sanctions to Montes.
In his reply brief and in his opposition to Montes's motion for sanctions on appeal, Parker requests that we acknowledge reading his arguments in their entirety. We have done so.
We reject these assertions. Given Parker's history of noncooperation, there was no necessity for a meet and confer order. Montes properly filed the sanctions motion before the hearing on the contempt OSC so that Parker had notice that she was seeking sanctions. The trial court's findings that Parker was not a vexatious litigant and that his motion did not meet a "totally without merit" standard for sanctions did not preclude an award of sanctions for his unreasonable conduct that frustrated the policy of settlement. The dismissal of the contempt OSC with prejudice because of the impossibility of showing contempt constituted an adjudication against him on the merits of the contempt claim. The award of fees for time spent researching the issue of jurisdiction over Attorney Ravreby was not improper given the finding that the contempt OSC in its entirety was part of an unreasonable course of conduct. The trial court could properly consider Parker's past conduct when deciding whether sanctions were warranted for his current conduct. The fee declaration reflects more than $500 in fees and costs generated by the contempt OSC. It was proper to award the sanctions to Montes based on Ravreby's fee declaration, with the award made payable to Ravreby. (§ 272, subd. (a) [attorney fee award may be made payable to party's attorney].)
When ruling on the sanctions motion the trial stated that it was not prepared to make a finding that Parker's contempt OSC was "totally without merit" and accordingly declined Montes's request to award sanctions under Code of Civil Procedure sections 128.6 and 128.7. Code of Civil Procedure section 128.6, which includes a "totally and completely without merit" standard as an available standard for the award of sanctions, is actually inoperative. (See Inoperative Effect, 13 West's Ann. Code Civ. Proc. (2006 ed.) foll. § 128.6, p. 444.) In any event, the fact that the trial court declined to impose sanctions under a statute that it characterized as imposing a higher standard than section 271 did not preclude it from awarding sanctions under section 271.
The $500 amount cited by Parker was for attorney fees charged by an attorney who assisted Ravreby in responding to the contempt OSC.
In his reply brief, Parker raises several matters that were not raised in his opening brief and were not raised before the trial court. We decline to address them. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453; In re S.B. (2004) 32 Cal.4th 1287, 1293.)
Sanctions on Appeal
Montes has filed a motion requesting $15,000 sanctions against Parker for the filing of a frivolous appeal. She submitted a declaration stating that she had incurred $9,460.50 in attorney fees for the appeal as of January 27, 2009, and anticipated that her fees would be at least $15,000 by the time of oral argument on appeal. We sent notice to Parker, and he filed an opposition. (Cal. Rules of Court, rule 8.276(b), (c), (d).)
In his reply brief, Parker contends he should have been given 15 days to respond to the sanctions motion, whereas we only gave him 10 days. The rules only require 10 days. (Cal. Rules of Court, rule 8.276(d).) In his opposition to the motion for sanctions on appeal, he asserts the motion is deficient because it does not include a cost declaration from Montes's attorney. California Rules of Court, rule 8.276(b) requires "a declaration supporting the amount of any monetary sanction sought." The rule does not specify that the declaration must be from the attorney charging fees on appeal. Montes's declaration setting forth the amount of fees she has incurred on appeal suffices. Moreover, this court is familiar with the hourly rates commonly charged and the time reasonably expended in responding to an appeal similar to the one at issue here.
An appeal may be deemed frivolous when (1) under a subjective standard, it is prosecuted for improper motives of harassment or delay, or (2) under an objective standard, it indisputably has no merit because any reasonable attorney would agree that the appeal is totally and completely without merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650; In re Marriage of Schnabel (1994) 30 Cal.App.4th 747, 754; Code Civ. Proc., § 907.) Although a pro. per. litigant is not necessarily charged with the knowledge that is imputed to an attorney under the objective prong of the frivolous appeal analysis (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98), a pro. per. litigant who persists in raising matters that he or she knows are baseless can properly be sanctioned under the subjective prong for harassment (Leslie v. Bd. of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121).
Here, the contempt OSC filed against Montes's attorney was baseless and unreasonable. No reasonable person, including a pro. per. litigant, could construe the contempt OSC as supported by a reasonable basis. Parker's conduct of subjecting Attorney Ravreby to a contempt OSC merely for reasonably implementing a postjudgment order in the dissolution proceedings, and then refusing to withdraw the OSC, reflects an improper intent and a motive to harass and delay. There was no justification for raising an appellate challenge to the dismissal of the contempt OSC or to the award of sanctions for filing the contempt OSC. Further, the amount of the sanctions imposed by the trial court was reasonable and supported by the record. Having resolved several prior appeals filed by Parker, we are familiar with his conduct throughout the lengthy litigation, including his insistence on making baseless claims and his disregard of judicial admonitions to refrain from this course of conduct. We are satisfied Parker filed the current appeal for purposes of harassment. Accordingly, we award $7,500 sanctions against him.
DISPOSITION
The orders are affirmed. Parker is ordered to pay to Montes (1) her costs on appeal, and (2) $7,500 in sanctions for a frivolous appeal.
WE CONCUR: HUFFMAN, Acting P.J., McDONALD, J.