*1 Dist., Three. Nov. 1994.] Div. G015181. Fourth [No. TERRY L. SCHNABEL. MARILYN J.
In re the SCHNABEL, v. Respondent, MARILYN J. SCHNABEL,
TERRY L. Appellant.
Counsel P. for Pringle Appellant. & Moore and John Roquemore, Pringle James C. Booth for Respondent.
Opinion fees and
SONENSHINE, J. L. Schnabel appeals pretrial J. Schnabel. Marilyn orders payable support
I
familiar,
have
reason. We
good
there is
If the names of the
sound
parties
has authored one—Schnabel
written several
Court
Supreme
opinions
1117],
(1993)
Superior
Cal.Rptr.2d
v.
Court
II filed, In shortly petition June after the dissolution later, Two years orders. support to certain lite parties stipulated pendente 1992; Supreme Court 1(1) granted by оpinion review September G012033—our filed 704; 30, 1992; Court, (3) G013683— (2) supra, 5 Cal.4th Superior Schnabel v. November 1993; reconsid August Court in opinion by Supreme filed March transferred back 704; (1993) 21 Superior v. Court light (4) eration in of 5 Cal.4th G013683—Schnabel Superior v. 169]; history, see Schnabel Cal.App.4th Cal.Rptr.2d For a detailed Court, 677], page post, Cal.Rptr.2d 758 [36 discovery was completed pursuant (Schnabel Court Supreme mandаte. v. Court, Superior supra, 704.) 5 Cal.4th filed the order to underlying show cause in requesting increase spousal support and attor- fees. ney
The court found Marilyn’s “CPA’s report to be persuasive [found controllable Terry’s] $6850 cash flow to be at least month.”2 per Terry has several about the complaints and contends the report court erred relying on it. And therefore the court erred in he had the finding ability to the' spousal fees support as ordered. first attacks the inclusion of for medical and life insurance because he was
premiums obligated to maintain coverage for Marilyn. But he failed to below object and therefore this issue cannot be raised on (In re appeal. *4 Arceneaux 51 Cal.3d 1138 [275 Moreover, any Marilyn’s reductiоn needs benefits Terry.
Terry next maintains he should not have been for the charged corpora- tion’s of his payment attorney fees because a evidenced promissory note his responsibility that amount. And he repay argues the court erred considering 30 percent of the fees charged to the paid by corporation because there no the fees were showing incurred for but a anything Moreover, corporate purpose. because no the portion of retained earnings were available to there Terry, was no Code section 9270 Family showing $10,000 that had the Terry (or ability pay Marilyn amount) in any fees. case, Finally, citing a 1904 and a 1941 maintains as a 30 Terry percent shareholder, he could not force thе him corporation to a dividend. control, found,
But credibility, not corporate is the issue. The court based records, on the corporation’s past financial present that but for the Indeed, dissolution proceedings, adequate would have money been available. 2Marilyn’s expert’s report indicated: ($2,250 24) $54,000 Salary per W-2 x - - Bonus 0 3,596 Mileage $ and insurance added to W-2 per accountant $57,596 Subtotal 3,738 expenses $ Personal charged company on credit card 2,747 (12 $228.92) $ Medical and life insurance perks x $14,610 Attorney fees quash discovery Terry re motion to per billings: 3,273 percent corporate $ billing Orange Container, Total Inc. Estimate of $ interest income Annual controllable cash flow 6,847 Average monthly $ controllable cash flоw The did not believe reason. court fail for the same Terry’s arguments all of or his witnesses. as to certain issues much: “The court looks This trial court said as One, very dated in the note validity promissory credibility issues. *5 $28,800 it and (4) The fees billed to attorney for corporation paid $21,821 the relating for rendered to for fees to dissolution. services re-
(5) in which any fees Terry’s predate appellate process the quested corporation’s joinder.
(6) the by corpo- credit card is reimbursed Terry’s personal expense ration, he and refuses to provide accounting. life insur-
(7) expenses, auto corporation provides transportation, ance and medical insurance to Terry. fees
(8) attorney through Bankhead never refused to pay Terry’s has the corporation. $21,115
(9) was signed to the Terry’s promissory corporation note to show underlying three the date on the order days original hearing before cause. accountant, Mills, he received a William testified Marilyn’s
$3,500 $500 additional retainer in credit remained. Substantial Only 1991. costs are required. 1989, 1990,
(11) The income for and 1991 was reported by Terry than he wаs greater currently receiving.
(12) The corporation’s retained from increased earnings 1991 to 1992 $131,666. (13) Retained were available for earnings bonuses that had typically been were but not since the paid parties’ Terry’s separation. corpo- accountant, Herman, ration’s Dale testified received annual bonuses of but none after the were commеnced proceedings in 1991.
“ begins and ends with a as whether there is power determination to ‘[0]ur any substantial evidence to . . . we have no to support findings]. power [the evidence, evidence, judge of the effect or value of the to weigh to witnesses, consider the of the in the credibility or to resolve conflicts evidence or the reasonable inferencеs that be drawn therefrom.’ may (Leff v. Gunter 33 Cal.3d [Citations.]” The trial court well within its discretion in finding Terry possessed ability fees ordered and that needed attorney stated, As the court “With money. fees: the court notes the regard amount of attorney They fees here. are substantial. And the court notes that matter, from a discovery standpoint, has been and down to the up Court. And Supreme there’s been about presently combined fees, 19,000 and there’s receivable now by petitioner’s attorney. [][] Fortunately, for the there respondent is no receivable that his fees are And being paid. the court notes that the petitioner does have some 19,000 fees, case, cash-on-hand. But this in attorney of this given history is going increase between significantly now the time of trial. And *6 if even she her does use own I money, don’t think it’s the of the state policy believes, that she become destitute her fees. paying attorney court [][] again, there’s substantial retained and there’s an to earnings, certainly ability or pay have reasonable access I to funds to And don’t think it’s fair that pay.
the respondent has his fees through a asset and the paid cоmmunity petitioner does not.” note, however,
We agree. We do that evidence of despite overwhelming needs, Terry’s ability to and the the court nevertheless made Marilyn’s fee award “without further allocation at the time of prejudice trial.” Marilyn gets her it Terry argue at trial can should be money now but a charge against her or the community. lite spousal support fares no better with his attack on
Terry pendente and his version.3 ignore findings accept order. He asks us to the trial court’s his expert gave opinion He misunderstands the litigation process. Marilyn’s Container’s Orange cash flow based on his review of Terry’s of controllable him on his own and Terry’s attorney put financial records. cross-examined evidence, weighed who wаs also cross-examined. The court expert, however, and came to own conclusion. lost. its
III the matter remanded for of fees asks be assessment We and remind the trial court Code section against Terry. Family costs do so 2030 intends be “the amount for attor- paid reasonably necessary To fees and for the cost of or ney’s maintaining defending proceеding.” do otherwise her deny legal [necessary] would “access to representation Code, (Fam. 2030.)4 all of . . . .” preserve rights [her] § IV motion, On our own we we advised his counsel would consider Code Civil ordering Procedure section 907 sanctions payable them to this court for frivolous appeal. Accounts,
Computer Prepared v. 235 Cal.App.3d Inc. Katz is instructive: have Code Cal.Rptr. struggled apply “Courts [286 556] hand, of Civil Procedure section 907. On the the statute one [Citation.] behavior, should be used to for a and to deter compensate party’s egregious abuse of the court On the system other appellate process. [Citations.] hand, sanctions should not be awarded is without because simply appeal merit. Indiscriminate of section 907 сould deter from application attorneys clients, vigorously their and deter representing legiti from parties pursuing []Q [(1982)] mate appeals. Flaherty In re 31 Cal.3d [Citation.] attempted to strike balance between 179] 20, 1993, 3Terry’s opening September brief states: “This Court should reverse the order of $4,800.00 earnings the trial Court for support parties, and have reset based on the actual $1,700.00 Dissomaster, [Marilyn]. Using approximately award be [Terry] and will pointed [Terry] of what was ordered herein. It should be out that the net income of one-half *7 $3,431.00. time the order was made herein was the sum of . . . The order that was at the [Marilyn’s] basically payment support here is one-half of his net income. Before of net made $2,877.00. $1,227.00. jumps to payment support . . . After of the her nеt income income $1,781.00.” net income falls to [Terry’s] record, 271 suggest Family attorney on this we also Code section fees. 4Based seek 754
preventing inexcusable conduct and preserving attorney’s ability vig- orously his or her client. The represent court set forth a test for determining standards, whether an is frivolous. Two appeal and subjective objective, standard, were described. Under a subjective the court assesses motives Thus, party party’s . . . attorney. a court should a consider sanctions, in good faith party’s determining An propriety awarding standard, contrast, objective ‘looks at the merits of the from appeal reasonable person’s A perspective.’ court should consider [Citation.] whether any reasonable pеrson would conclude that the appeal is and ‘totally completely without merit.’ A judgment appealed ‘despite [Citations.] fact that no reasonable could have thought meritorious appeal] [the ties up judicial resources and diverts attention from the burdensome already sum, volume of work at the In appellate Flaherty courts.’ [Citation.] [][] concluded that ‘an should appeal be held to be frivolous when it is only for an prosecuted improper motive—to harass the respondent delay or effect of an adverse judgment—or when it has no indisputably merit—when any reasonable would agree that the is and appeal totally completely Accounts, Katz, without merit.’ (Computer Prepared Inc. v. [Citation.]” 434-435, suрra, 235 at Cal.App.3d omitted.) fn. pp. standards, either of the
By above is appeal Terry frivolous. appeals pretrial spousal order support which increases his obligation about $150 a month from an amount to which he had previously No stipulated. set, matter how in far the future the trial date might be under these circum stances this increase does not warrant the еxpenditure necessary prosecute this appeal. His second issue addresses the fee order. rehashes “little, evidentiary and findings cites if any, . . . legal support any of The arguments]. briefs . [his . . discuss legal a vacuum” and principles on rely outdated and (Kurokawa inapt authority. v. Blum 199 Cal.App.3d Cal.Rptr. Given the past history [245 of this us, matter and a review of the record beforе we can only conclude that the appeal is devoid totally of merit and was and brought merely to harass delay. (In re Economou 105-106 Cal.App.3d 673].)5 We conclude it was filed only because Orange still refuse to the fact accept that with dealing must they play by the rules of law and not their own. here, 5In the presented context particularly egregious this is a ploy. “Wоmen . . . face greater financial obstacles gaining than men in access to they the courts because lack funds to appropriate retain legal expert counsel. Nevada reported divorcing task force that a court], woman ‘beg must piecemeal, [the for a few dollars which she must prove is “needed” prosecute her action оr defense’ whereas husband spend[s] freely community ‘the from Schafran, legal (See
funds for his own needs’ . . . .” Family (Aug. Gender Bias in Courts Advocate, 1994) Family 26.) No. p.
755 There other frivolous consequences filing beyond are to the of this appeal the harm by Marilyn. appellate many suffered “Other of whom wait parties, a years for resolution of bona fide are the useless disputes, prejudiced (Martineau, of Un Appeals: diversion this court’s attention. Frivolous 845, (1984) Response 18.) certain Federal Duke L.J. & fn. In same 848 vein, appellate state are system taxpayers damaged by of this (See what amounts to a waste of this time and court’s resources. generally, 202, 326]; (1969) Unger Bennett v. 272 211 cf. Cal.App.2d Cal.Rptr. [77 Cann, (1981) Frivolous ‘No’ Lawyer’s Duty Say Lawsuits—The 52 U.Colo. 367, L.Rev. 368-369 the social [disсussing cost of frivolous appeals].) measure . . Accordingly, appropriate compensate of sanctions should . government for its expense reviewing deciding processing, 211; appeal. supra, frivolous v. Unger, p. 272 at Cal.App.2d {Bennett Appeal: Survey Proposal A Eisenberg, [Sanctions on and a Computation (1985)] 33.)” Guidelines 20 U.S.F. p. L.Rev. at v. Town Tiburon {Finnie of 1, (1988) 199 17-18 Cal.App.3d Cal.Rptr. [244 Several courts have addressed the amount of sanctions when appropriate al., they are to be paid (See to the appellate Eisenberg court clerk. et Cal. 11:142, Practice (The 1994) Guide: Civil & Writs Rutter Appeals Group p. 5[ 11-32.5, citing 2 (1992) “Cohen v. General Corp. Motors [Cal.App.4th] $5,908.26 897 . . . (finding to be of average [using cost civil latest appeal cost but figurеs,] assessing sanctions to clerk at 75% payable of that amount because appeal only became frivolous rendition of decision appellate after case); related People rel. Dept. ex Transp. Group v. Outdoor Media of [(1993) 13 (17 Cal.App.4th 19)] ($5,908.26); 1067 Cal.Rptr.2d Young v. [(1989) (260 Rosenthal 212 Cal.App.3d 369)] 96 Cal.Rptr. (estimating $3,995 as cost of average but of appeal as cost this particularly complex appeal); City Bell County (1991) Gardens v. Los Angeles 231 [Cal.App.3d] (same); . . . 1574 Economou {‘Economou II'), 107-108, supra, 223 at ($15,000 . . . [Cal.App.3d] as cost ‘proper total to the State assignable case’); to this [(1990)] Bank v. Varakin of California 1630,] 216 [Cal.App.3d ($25,000).”) 1640 . . . on the cited Based above record, cases and a review of this we direct that is immedi payable ately to the clerk of this court.
We now determine who is responsible for the may sanctions. Sanctions be ordered against litigant Woodsidev. Gava 213 Cal.App.3d {Townof 730]) (M. Cal.Rptr. against [261 and/or Gray E. Co. v. lawyer Gray 285]). We Cal.App.3d find the conduct of both his lawyer John P. to merit sanctions. Pringle
756 6068, states,
Business and Professions Code (c) section in subdivision actions, pertinent part, it is an attornеy’s counsel duty or maintain such “[t]o or proceedings, defenses as him only appear to or her or legal just Indeed, who, sanctions bemay assessed solely against lawyer because the merit, was in appeal totally so lacking had a professional obligation not to it pursue and should perhaps (Kurokawa have declined the case outright. v. Blum, 976, 996; supra, 199 Cal.App.3d see also v. Kramer Cosenza 152 Cal.App.3d 1100 Cal.Rptr. alone [attorney [200 sanctioned when 18] evidence established “as a matter of law” that appeal totally without merit].) cannot, however,
Terry all of the put blame on his counsel. He initiated the and appeal it. And the pursued record he amply finding supports benefited (Summers from the delay. v. City City (1990) Cathedrаl of Cal.App.3d As conceded Cal.Rptr. argument, [275 at oral Marilyn’s attorney fees have still not been paid.6 in orders favor of Marilyn are affirmed. The amount of attorney fees is to pay to is remanded to the trial court for determination. Code, (Fam. 2030.) is ordered to the clerk § of this pay court as further sanction for pursuing a frivolous John appeal. Pringle is orderеd to the clerk of this court as sanctions for pursuing a frivolous appeal.7
Sills,
J.,P.
concurred.
and Dissenting.
WALLIN, J., Concurring
that
agree
sanctions are appro-
I
in
If
priate
this case.
Schnabel
had sought sanctions from Terry
I
However,
Schnabel would have awarded them.
I disagree with the idea that
the sanctions should be
to
payable
this court. Due
entails
process
adjudica-
who,
definition,
tion
a neutral
by
decisionmaker
does not benefit from the
decision.
the
Obviously
court benefits at least
from the
incrementally
deter-
mination that sanctions are warranted. That does not seem
neutral
very
to
court,
me. Since we are the appellate
there is also
right
no
of
How is
appeal.
this for due
we
process:
announce
tо
that we
parties
are
that
thinking
opinion
6This
constitutes
the written statement of
In re
required by
reasons
Flaherty
Notes
[1] that also as and views of the earnings corporation, a substantial retained The court notes have increased. earnings issue. These retained credibility Grаnted, the is available. money This by corporation. cash maintained he does certainly But by the 30 interest percent respondent. court notes sound earning corporation.” in that cash in a retained very have an interest A evidence was before following review of the record indicates court. Terry’s employer, owns 30 of the stock of community percent Container, Inc. Orange (2) The other 70 is owned Harold Bankhard. percent since its inception has been of the vice-president corporation 11 years ago.