Opinion
G054314
11-26-2018
MARTIN P., Plaintiff and Appellant, v. SHARON D., Defendant and Respondent.
Brauer Law, and Laurel B. Brauer for Plaintiff and Appellant. Lemkin, Barnes & Row, and Cheryl Anne Row for Defendant and 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13P001859) OPINION Appeal from a judgment of the Superior Court of Orange County, Ronald P. Kreber, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Brauer Law, and Laurel B. Brauer for Plaintiff and Appellant. Lemkin, Barnes & Row, and Cheryl Anne Row for Defendant and Respondent.
* * *
The trial court in this custody and parentage action ordered respondent Sharon D. (mother) to pay some, but not all, of the attorney's fees incurred by appellant Martin P. (father) pursuant to Family Code sections 7605 and 7640. The court also denied father's request for fee sanctions under section 271.
All statutory references are to the Family Code unless otherwise noted.
Father challenges both rulings on appeal, and also challenges the trial court's decision to admit the testimony by mother's expert on the reasonableness of father's attorney's fees. For the reasons expressed below, we affirm the judgment.
I.
FACTS
Mother and father are the natural parents of a young child. Mother and father were never married, and their relationship lasted only three months.
After their child was born, father filed a paternity petition seeking custody and visitation rights, and mother filed for child support and attorney's fees. The family court awarded mother and father joint legal custody of their daughter, but it gave sole physical custody to mother, with father receiving parenting time. The court did not give joint physical custody to father because it found that: (1) father had once pushed the child (who was at the time less than one year old) during an argument with mother; (2) father had a history of being very demanding; (3) father did not cooperate in the Evidence Code section 730 evaluation or in paying for his half of the assessment; and (4) father made a copy of the section 730 report, despite being instructed not to do so.
We gather this from the briefs. The parties' pleadings are not part of the appellate record.
During the course of the litigation, which spanned several years, father incurred over $151,000 in attorney's fees. Midway through the case, mother agreed to pay father $7,500 for his attorneys' fees, and the family court awarded father an additional $20,000 in pendente lite attorney's fees.
At trial, father sought to recover additional need-based attorney fees and fee sanctions under sections 7605, 7640, and 271. In support, he submitted declarations by his two attorneys of record explaining their substantive experience and their work on the case. He also submitted counsel's redacted invoices and a declaration by a retained accountant.
In opposing father's fee request, mother designated family law attorney Marc Tovstein as an expert witness on the reasonableness of father's attorney fees. Father filed a motion in limine to exclude Tovstein, but the court denied the motion and heard Tovstein's testimony at trial.
After considering the evidence and hearing oral argument by counsel on the fee issue, the family court awarded father an additional $10,500 in need-based fees, in addition to the $27,500 previously awarded, and denied father's request for fee sanctions under section 271. The court provided a detailed explanation for its rulings in a 15-page statement of decision. Father appealed.
II.
DISCUSSION
A. "Reasonably Necessary" Attorney Fees
Father contends the trial court abused its discretion in evaluating the reasonableness of his attorney fees. We disagree.
1. The Statutory Framework
Sections 7605 and 7640 govern attorney fee awards in cases under the Uniform Parentage Act. (Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th 633, 638-639 (Kevin Q.).) Section 7605, subdivision (a), provides that a trial court "shall ensure that each party has access to legal representation to preserve each party's rights by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party . . . whatever amount is reasonably necessary for attorney's fees . . . during the pendency of the proceeding." (Italics added.) Section 7605, subdivision (b), requires a court faced with such a request to "make findings on whether an award of attorney's fees and costs is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs."
Section 7640 provides that "[t]he court may order reasonable fees of counsel . . . to be paid by the parties . . . in proportions and at times determined by the court." (Italics added.) As we explained in Kevin Q., "[s]ection 7640 gives a court the discretion to 'order reasonable [attorney] fees.'" (Kevin Q., supra, 195 Cal.App.4th at p. 639; see Robert J. v. Catherine D. (2005) 134 Cal.App.4th 1392, 1395.)
Trial courts have "considerable discretion in fashioning a need-based fee award." (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.) "The determination of the amount which is 'reasonably necessary' to ensure each party has access to legal representation is a decision necessarily committed to the sound judgment of the trial court." (Kevin Q., supra, 195 Cal.App.4th at p. 642.)
2. Standard of Review
Father incorrectly asserts that we must review the trial court's ruling de novo. The court's "determination of the amount which is 'reasonably necessary' to ensure each party has access to legal representation is . . . subject to review under an abuse of discretion standard." (Kevin Q., supra, 195 Cal.App.4th at p. 642). The court's decision whether to award fees under section 7640 is also reviewed for abuse of discretion. (See Alicia R. v. Timothy M. (1994) 29 Cal.App.4th 1232, 1238.)
The test for abuse of discretion is whether the court exceeded the bounds of reason (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682), and the burden is on the party complaining to establish an abuse of discretion (Denham v. Superior Court (1970) 2 Cal.3d 557, 566 (Denham)). Where, as here, the trial court has discretionary power to decide an issue, we may not substitute our judgment for that of the trial judge. We will not disturb the court's exercise of discretion on appeal in the absence of a clear showing of abuse resulting in a manifest miscarriage of justice. We therefore must affirm the fee award "'unless no judge reasonably could make the order.'" (In re Marriage of Turkanis and Price (2013) 213 Cal.App.4th 332, 345; see Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134 ["[t]he only proper basis of reversal of the amount of an attorney fees award is if the amount awarded is so large or small that it shocks the conscience and suggests that passion and prejudice influenced the determination"].)
3. The Trial Court's Statement of Decision
Here, the family court provided a detailed explanation for its denial of father's fee request in its statement of decision. According to the statement of decision, the court "considered the Family Code [section 4320] factors as outlined [in] In re Marriage of Kevin Q. for attorney's fees." After discussing those factors one by one, the court concluded that "[t]here is a need based on the evidence for [father] to have attorney's fees" and that mother "has the ability to pay." (Neither party appears to challenge these findings on appeal.) The court then turned to the questions of "how much is to be paid in attorney's fees and are the fees reasonable" and concluded the total amount of fees incurred by father was "unreasonable."
It is evident from the family court's statement of decision that it believed father's fees were too high given the circumstances. The court explained that father "failed to use case management," and also observed that father's e-mails "indicate[d] that [he] wanted to run up fees unless he got his visits with [the child]." The court reasoned the amount incurred "is quite high for a relationship that lasted three months and is a paternity action," and noted that mother's expert credibly testified "that this case called for attorney's fees in the range of $40,000 to $50,000." The court further commented that "[w]here an attorney represents a low wage earner, they do not have carte blanche to litigate without regard to limits of ability to pay." Finally, the court observed that father's fees were disproportionately high compared to the fees incurred by mother. Although mother incurred only about $51,000 as of December 2, 2015, father incurred over $151,000 in attorney's fees through September 2015; and those amounts did not include fees incurred at trial, which began in December 2015 and ended in January 2016.
For all these reasons, the trial court concluded that father's "attorney's fees request is unreasonable." The court therefore awarded "reasonable attorney's fees" to father's counsel in the amount of $10,500.
4. Analysis
At the outset, we note that father's opening and reply briefs fall short of complying with the rules governing citations to the record. "Professional ethics and considerations of credibility in advocacy require that appellants support their arguments with fair and accurate representations of trial court proceedings." (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 745 (Myers); see Cal. Rules of Court, rule 8.204(a)(2).) We "'"cannot be expected to search through a voluminous record to discover evidence on a point raised by [a party] when his brief makes no reference to the pages where the evidence on the point can be found in the record."'" (Myers, at p. 745.)
All of father's record citations, with the exception of his citations to the family court's statement of decision, are either to the argument section of father's own trial brief or to the argument section of father's motion for reconsideration. Those arguments are not evidence. "Citing points and authorities filed in the trial court is not appropriate support for factual assertions in a brief. Points and authorities are not presented under penalty of perjury. Matters set forth in points and authorities are not evidence. [Citation.] Evidence appears elsewhere—in deposition testimony, discovery responses, and declarations. The 'Argument' section in [father's] opening brief should have cited to those pages of the record." (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 590.) By failing to support the factual assertions in his legal arguments regarding the reasonableness of his fees request with citations to the record, father forfeited any argument attacking the court's ruling on that issue. (Ibid.)
Even if we were to set aside that defect, we would still find no abuse of discretion. The family court considered the parties' evidence and arguments on the issue of fees, and it did exactly what section 7605 required it to do: it made "findings on whether an award of attorney's fees and costs is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties." (§ 7605, subd. (b).)
Father complains the family court failed to identify which fees it found were unreasonable and why they were unreasonable, repeatedly asking, "What did [counsel] do that was unreasonable? How are [counsel's] fees unreasonable?" But the court was not required to make particularized, individual deletions from counsel's time entries. (See Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1329 ["counsel may not submit a plethora of noncompensable, vague, block-billed attorney time entries and expect particularized, individual deletions"].) We are not aware of any authority requiring a court to include a line-item review of counsel's billing records in determining the amount of "reasonably necessary" fees, and father cites none.
Father also complains the family court's statement of decision does not discuss each of the factors identified in In re Marriage of Keech (1999) 75 Cal.App.4th 860 (Keech). The Keech court stated that "'[t]he major factors to be considered by a court in fixing a reasonable attorney's fee [include] "the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney's efforts, his learning, his age, and his experience in the particular type of work demanded [citation]; 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."'" (Id. at p. 870.)
This argument also fails. Although the family court did not expressly apply each of the Keech factors in its statement of decision, it is evident from the court's analysis that it did take into account the requisite factors, such as the nature of the litigation, and its difficulty, in exercising its discretion. For example, the court observed the litigation was just "a paternity action" between individuals who were in a relationship that lasted only three months. In other words, this was not a complex or complicated case, either factually or legally. (See Keech, supra, 75 Cal.App.4th at p. 871 [trial court abused its discretion in awarding $25,000 in fees in "a relatively simple dissolution action"].) The court was not required to go through the Keech factors one by one in its ruling; it was only required to take them into account in exercising its discretion. The statement of decision reveals the court did just that. (See Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 254 ["no particular language is required in an order awarding attorney fees"; the record and order must just "reflect an actual exercise of . . . discretion"].)
Significantly, this is not a case where the family court completely failed to consider whether the fees incurred were reasonably necessary. (Contrast In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1280 [remanding where trial court failed to make any finding on "'whether an award of attorney's fees and costs . . . [was] appropriate'"]; In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1314 [trial court's outright refusal to review counsel's billing statements or conduct hearing on reasonableness of fees was "a clear abuse of discretion"]; Keech, supra, 75 Cal.App.4th at p. 870 ["It was an abuse of discretion to order husband to pay wife's attorney fees without making any inquiry into the reasonableness of those fees"].)
Nor is this a case where no evidence supported the family court's finding father's fee request was unreasonable. (Contrast In re Marriage of Braud (1996) 45 Cal.App.4th 797, 828 [where "there was no showing that the time spent or fees charged were unreasonable . . . such a drastic reduction in the requested amount cannot be sustained"]; In re Marriage of Fransen (1983) 142 Cal.App.3d 419, 426-427 (Fransen) [trial court abused its discretion by awarding only $1,500 in fees where there was no indication request for $11,855 was unreasonable].)
Instead, this is a case where the court considered the evidence and concluded the fees were unreasonable. Under these circumstances, we find no abuse of discretion. (See In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1516, 1525 (Huntington) [trial court did not abuse its discretion in refusing to award wife additional fees after she already had already received $19,000 in fees from husband; wife "had already received considerably more in fees than the trial court considered the case worth"]; In re Marriage of Lopez (1974) 38 Cal.App.3d 93, 112-113, disapproved on other grounds in In re Marriage of Morrison (1978) 20 Cal.3d 437, 453 [upholding award of $5,000, rather than the $15,345.32 wife's attorney requested, based on family court's opinion the wife "'could have been well and properly represented'" with a fee of $5,000].)
In arguing the family court misapplied the relevant factors for determining whether his fees were "reasonably necessary," father picks apart the court's statement of decision, criticizing each point separately rather than looking at the reasoning as a whole. These arguments fail. For example, father correctly notes the disparity in the parties' fees and the length of the parties' relationship are not determinative, but those were not the only factors relied on by the court.
Father complains about the family court's comment that attorneys who represent low wage earners "do not have carte blanche to litigate without regard to limits of ability to pay," asserting that the court misquoted Kevin Q. This argument also fails. Neither father nor his attorney "is entitled to recover . . . a contributive share of whatever fees the attorney chooses to charge. Although the attorney's right to recover from the attorney's own client may be limited only by the fee agreement and ethical limitations, there are additional limitations on recovery of fees from the opposing [side]—including not only that the opposing [side] has the ability to pay, but also that the fees be 'reasonably necessary,' and that payment of the fees by the opposing spouse is 'just and reasonable' under the relative circumstances of the respective parties." (Keech, supra, 75 Cal.App.4th at pp. 870-871.) Thus, the trial court was correct in noting that father's counsel did not have carte blanche to litigate this matter without regard to the realities of the case.
Father also relies on a single line from Fransen, supra, 142 Cal.App.3d at p. 427, wherein the court observed that "[n]o attorney should be paid a fee inconsistent with the work he has performed." But Fransen is inapposite. Fransen found that the trial court abused its discretion in awarding only $1,500 of the $11,855 in fees requested because nothing in the record supported an award that low; there was nothing "in the record that question[ed] the reasonableness nor unreasonableness of [the fee] request." (Ibid.) In other words, the fees in Fransen were reasonable. Here, by comparison, the court found the fees father's counsel charged were unreasonable. If Fransen stood for the proposition an attorney always must be awarded 100 percent of his or her fees, as father seems to suggest, courts never could reduce fee requests, no matter how unreasonable. That is inconsistent with California law.
Father also argues his fees were justifiably high because of mother's litigation tactics and because of father's "heavier discovery burden." However, he provides no citations to the record in support of these contentions. Moreover, these arguments were "presented to the trial court both at trial and in [his] motion for reconsideration. The trial court was in a far better position than this court to assess the factual basis for appellant's assertions, and apparently found it lacking." (Huntington, supra, 10 Cal.App.4th at pp. 1524-1525.) The court's rejection of these arguments is bolstered by its observation that father "wanted to run up fees unless he got his visits with [the child]."
Father notes the family court's statement of decision observes that father's counsel "has received every award possible from [sic] Family Law lawyers and her reputation is outstanding," and that counsel's time sheets "are in order." Contrary to father's suggestion, those comments do not mean that father's fees in this particular case were reasonable. (See Kevin Q., supra, 195 Cal.App.4th at p. 645 [court's finding "that neither party acted in bad faith or unreasonably in prosecuting or defending the matter" was "not an affirmation that the fees charged by her attorney were reasonable"].)
For all of the above reasons, we find no abuse of discretion. The family court had considerable discretion in fashioning a need-based fee award, and the determination of a "reasonably necessary" amount was properly committed to its sound discretion. We cannot say, on this record, that no court reasonably could make the award in question. (See In re Schleich (2017) 8 Cal.App.5th 267, 295 [observing court's fee "reduction reflect[ed] a reasonable exercise of discretion" where trial court awarded wife less than 30 percent of her requested need-based fee award after reviewing her counsel's billing records].) B. Admission and Reliance on Expert Testimony
Father next contends the family court erred in admitting and relying on mother's expert's testimony regarding the reasonableness of father's fees. Specifically, father argues the expert's testimony was inadmissible because it was not "[r]elated to a subject that is sufficiently beyond common experience." (Evid. Code, § 801.) He also complains the expert's testimony was unsubstantiated and conclusory, and it amounted to nothing more than legal conclusions. Reviewing the court's decision to admit the testimony for abuse of discretion (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 928), we find no reversible error.
Father does not appear to question Tovstein's qualifications as an expert witness.
Contrary to father's arguments, expert testimony on the reasonableness of attorney fees is admissible if it assists the trier of fact. (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 272-273; see Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1396 [expert attorney declaration on whether work performed by counsel was "reasonably necessary" in CPRA litigation supported trial court's finding the number of hours claimed by counsel was reasonable]; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2018) ¶ 14:205, p. 14-77 ["Another attorney, qualified as an expert to testify to the reasonable value of counsel's services in the case, may be used as an expert witness on the question of 'reasonably necessary' services and a 'reasonable' amount of attorney fees" in response to a motion for need-based fees].)
It is true that "'when the trial court is informed of the extent and nature of the services rendered, it may rely on its own experience and knowledge in determining their reasonable value." (Keech, supra, 75 Cal.App.4th at p. 871.) Here, however, the case was assigned to a new judge just two days before trial. Given that the new judge was presumably unfamiliar with the case's history, the use of an expert witness on fees was all the more appropriate.
Further, Tovstein's testimony was not prohibitively conclusory. He testified that after reviewing father's counsel's fee invoices and the pleadings, he was concerned about the overall amount of fees incurred. He opined that father's counsel had incurred substantial fees trying to establish that mother had ample funds available to pay father's fees, thereby creating "an endless cycle of generating more fees so that you can find a forum for paying more fees." He explained that once it was established that mother had at least $700,000 at her disposal, there was no point in trying to identify other sources of funds to pay father's fees because there was no way the fees in this case would approach $700,000. He further explained, "when you set out to litigate a case, you have to take a look at the end game. What is it we are trying to accomplish[?] . . . [I]t makes no sense to spend a ton of money with accountants and valuations to determine what the extent of an estate is . . . when you [compare] . . . the amount in controversy versus that which is being expended. You wouldn't spend $5 to get back a dollar."
Notably, Tovstein also testified that he did not question counsel's competency or the reasonableness of counsel's hourly rate, and he did not second-guess how many hours counsel spent on a given task.
Tovstein further concluded that "a case of this magnitude ... should never be more than [$]40[,000] to $50,000." It was this final point that the family court appeared to rely on in its statement of decision, and we find no abuse of discretion in the court's reliance on that point.
The record contradicts father's contention Tovstein did not review father's billing statements. The record also shows the family court did not rely on Tovstein's testimony that may have included impermissible legal argument or legal conclusions. Further, father vigorously cross-examined Tovstein about his reasoning and conclusions. In sum, we find no abuse of discretion in the court's admission of and limited reliance on Tovstein's testimony. C. Denial of Section 271 Sanctions
Father lastly asserts that the trial court erred in denying his request for fee sanctions under section 271. Section 271 provides that a "court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys." Father sought sanctions based on allegations mother did not cooperate in settlement negotiations, engaged in discovery violations, and misrepresented her wealth in her initial income and expense declaration.
"The imposition of sanctions under section 271 is committed to the sound discretion of the trial court. The trial court's order will be upheld on appeal unless . . . no judge could reasonably make the order.'" (In re E.M. (2014) 228 Cal.App.4th 828, 850.) "'We review any findings of fact that formed the basis for the award of sanctions under a substantial evidence standard of review.'" (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225-1226.)
In its statement of decision, the trial court denied father's sanctions request because it found mother did not have ill "intent" when she submitted her original inaccurate income and expense declaration. It noted that the document was "an embarrassment" and "should never have been filed with the Court, in that condition, when it lacked relevant information," but after mother secured new counsel, she filed a new income and expense declaration that included the missing information. The court further concluded that mother was not "out to commit a fraud against [father] by not revealing her assets," and thus "found no evidence to award sanctions for [father] against [mother]." We find no abuse of discretion in this ruling.
Father complains the family court failed to consider the parties could have avoided multiple years of litigation had mother responded to and accepted father's initial settlement proposal. The court did not specifically refer to settlement negotiations, but it does not follow from this that the court did not consider the issue in determining whether to impose sanction. It bears repeating that section 271 is discretionary, not mandatory, in nature (§ 271, subd. (a)), and it "does not require that the sanction imposed compensate for all fees and costs expended" as a result of the sanctionable conduct (In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1346). Further, in light of the court's conclusion that father "wanted to run up fees unless he got his visits with [the child]," an award of sanctions in favor of father and against mother would seem inconsistent with the very purpose of section 271.
Finally, father's failure to provide a complete record on appeal prevents us from meaningfully evaluating whether the trial court's ruling on the section 271 sanctions request constituted an abuse of discretion. The court's decision is presumed correct, and father, as the appellant, has the burden of overcoming that presumption. (Denham, supra, 2 Cal.3d at p. 564.) He failed to do so. The appellate record includes only father's trial briefs, his motion in limine, the court's judgment and statement of decision, father's motion to set aside the judgment, and various reporter's transcripts. From what we can tell, the record does not include any filings by mother or any of the discovery responses or discovery motions that allegedly drove up fees. (If the record does include such documents, father has not cited them for us.)
Simply put, father has given us only one side of the story, and he asks us to take him at his word that mother engaged in sanctionable conduct. We may not do so. We cannot say, based on the limited and one-sided record before us, the family court abused its discretion in denying section 271 sanctions. Father's failure to provide an adequate record requires that this issue be resolved against him. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187; Myers, supra, 178 Cal.App.4th at p. 749 [appellant's failure to brief all the material evidence on the point, and not merely his own evidence, waives any claim the record lacked substantial evidence].)
III.
DISPOSITION
The judgment is affirmed. Mother shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. FYBEL, J.