Marriage of Dolkhani & Izadpanahi CA2/7 ( 2023 )


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  • Filed 3/8/23 Marriage of Dolkhani & Izadpanahi CA2/7
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SEVEN
    In re Marriage of NAHID H.                                 B317763
    DOLKHANI and KOUROSH
    IZADPANAHI.                                               (Los Angeles County
    Super. Ct. No.
    18CHFL02540)
    NAHID H. DOLKHANI,
    Respondent,
    v.
    KOUROSH IZADPANAHI,
    Appellant.
    APPEAL from an order of the Superior Court of
    Los Angeles County, Sarah Heidel, Judge. Affirmed as modified.
    Kourosh Izadpanahi, in pro. per., for Appellant.
    Ferguson Case Orr Patterson and Wendy C. Lascher for
    Respondent.
    ________________________________
    The family court ordered Kourosh Izadpanahi to pay
    $11,605 in sanctions pursuant to Family Code section 271
    (section 271) to counsel for his former wife, Nahid Dolkhani,
    based on Izadpanahi’s failure to cooperate in the preparation of a
    proposed judgment resolving property issues in Dolkhani and
    Izadpanahi’s dissolution action. Although the court did not abuse
    its discretion in awarding section 271 sanctions, the court’s
    finding supports an award of only $6,605 for fees tethered to the
    misconduct it identified. We reduce the sanctions award to that
    amount and affirm the order as modified.
    FACTUAL AND PROCEDURAL BACKGROUND
    1. The July 7, 2021 Order To Prepare a Proposed Judgment
    and Ultimate Entry of the Judgment
    As described in our opinion in Izadpanahi’s prior appeal
    (Dolkhani v. Izadpanahi (Jan. 20, 2023, B314257) [nonpub.
    opn.]), in 2017 Dolkhani and Izadpanahi resolved outstanding
    issues in their long-pending family law case through a stipulated
    judgment. Before the stipulated judgment was entered, however,
    the couple tried to reconcile; and the action was dismissed
    without prejudice. In 2018 Dolkhani filed a new dissolution
    petition and a request for order to enforce the terms of the
    parties’ stipulated judgment. Izadpanahi opposed the request.
    On July 7, 2021 the family court held a short cause trial on
    the issue whether judgment could be entered based on the
    parties’ 2017 stipulated judgment. Izadpanahi and Dolkhani
    were each represented by counsel. The court ruled the stipulated
    judgment was still binding and directed Dolkhani to submit a
    2
    proposed judgment to Izadpanahi for review and thereafter to
    submit it to the court for entry.
    The judgment was ultimately entered on September 30,
    2021. The interaction between Izadpanahi, who represented
    himself for most of the period after the July 7, 2021 trial, and
    Dolkhani’s counsel leading to entry of the judgment was the basis
    for the court’s sanctions award.
    Two days after the July 7, 2021 hearing, Steven L. Weiss,
    Dolkhani’s attorney, sent Izadpanahi and the attorney who had
    represented him at the hearing a judgment package. According
    to Weiss’s declaration filed in support of the motion for sanctions,
    he received no response to the package or any of his follow-up
    emails. Accordingly, in mid-August 2021 Weiss submitted
    two declarations—one pursuant to California Rules of Court,
    rule 5.125 (preparation, service, and submission of order after
    hearing); and the second pursuant to rule 3.1590 (announcement
    of tentative decision, statement of decision, and judgment)—
    summarizing the status of the matter and asking the court to
    enter judgment. The declarations contained an unsigned copy of
    the judgment as an exhibit. The court took no action in response
    to those filings.
    For his part, Izadpanahi acknowledged that Weiss sent him
    the judgment package following the July 7, 2021 hearing. After
    10 days Weiss emailed Izadpanahi and advised him, because
    Izadpanahi had not responded within the required time, he had
    lost the opportunity to object to the form of the proposed
    judgment and Weiss would proceed. Izadpanahi confirmed Weiss
    was correct and, he asserted, assumed Weiss would then submit
    the judgment to the court. According to Izadpanahi, the
    summary declarations filed thereafter by Weiss did not include
    3
    the proposed judgment, but Izadpanahi believed from his
    continuing email exchanges with Weiss that Weiss had submitted
    it. That, according to Izadpanahi, turned out not to be the case.
    On September 3, 2021 Izadpanahi filed a request for a
    temporary emergency order to have the judgment entered.1 The
    court denied the request for order, explaining, “If the parties wish
    to have the court sign a judgment, they are directed to submit it,
    signed, with all requested documents and paperwork, to the court
    for processing. If there is no signature from [one] party, please
    submit a proof of service indicating whether it has been served
    [and] if there are objections.” Weiss then sent a second judgment
    package to Izadpanahi for him to sign and return for Dolkhani to
    sign and have Weiss file with the court. Instead, Izadpanahi
    signed and submitted it to the court on his own on September 7,
    2021. The court then entered the judgment.
    2. The Section 271 Sanctions Motions
    a. The initial request
    On August 19, 2021 Izadpanahi filed a request for order
    relating to child custody and visitation2 and on August 23, 2021 a
    related request for a child custody evaluation. In Weiss’s
    response on behalf of Dolkhani, he requested section 271
    1      Following the July 7, 2021 trial, Izadpanahi immediately
    filed a notice of appeal. On September 1, 2021 he was notified by
    this court that the case information statement filed on August 30,
    2021 for the appeal was deficient because it did not attach a copy
    of a signed judgment. Izadpanahi included that notice as an
    exhibit to his declaration in support of the request for an order
    entering the judgment.
    2    Dolkhani and Izadpanahi have a daughter. Izadpanahi
    was seeking 50/50 custody.
    4
    sanctions of $75,000 based on Izadpanahi’s purported misconduct
    throughout the entire course of the case.
    At a hearing on October 7, 2021 the family court denied
    both of Izadpanahi’s requests regarding custody and visitation.
    Turning to the question of section 271 sanctions, the court noted
    that Dolkhani’s request covered the entire proceeding and
    inquired of Weiss, “What were the costs that were incurred just
    trying to get this judgment entered because that’s the part that I
    think—that’s the portion of this that I think was—really abused
    the litigation process?” The court commented whether the 2017
    stipulated judgment remained enforceable was a legitimate legal
    dispute for which sanctions should not be awarded, as were the
    issues raised by Izadpanahi concerning custody and visitation.
    Weiss responded that he could not answer that question without
    reviewing his firm’s invoices. The court denied the motion for
    sanctions without prejudice, observing it had “never had a more
    confusing way of having a judgment submitted when both parties
    wanted it signed.” The court continued, “I do believe,
    Mr. Izadpanahi, that was largely because you were
    uncooperative” and authorized Weiss to “put that in a declaration
    with a request for 271 sanctions, if he wants to.”3
    b. The October 20, 2021 motion
    Notwithstanding the court’s direction to limit a renewed
    section 271 motion to fees and costs related to the process by
    which judgment had been entered, on October 20, 2021 Weiss
    3      The court directed Weiss to prepare findings and order
    after hearing with respect to custody and visitation. Weiss asked
    if he could include in the findings the court’s comments about
    Izadpanahi being uncooperative. The court responded, “That’s
    not a formal finding.”
    5
    filed a new motion on behalf of Dolkhani for section 271 sanctions
    that again requested an award of $75,000, but added, “or other
    such amount’s [sic] this court deems just and proper.” Weiss’s
    declaration in support of the award described Izadpanahi’s lack of
    cooperation during discovery, trial preparation, settlement
    discussions and the July 7, 2021 trial itself. After July 7, 2021,
    Weiss declared, he spent at least $5,030 in attorney time in July
    and August drafting the proposed judgment, trying to correspond
    with Izadpanahi and his counsel about the judgment and
    preparing the two declarations he filed,4 as well as $675 in fees
    responding to Izadpanahi’s September ex parte application for
    entry of the judgment. In addition, responding to Izadpanahi’s
    two requests for orders relating to custody and visitation
    following the July 7, 2021 hearing, including appearing at the
    October 7, 2021 hearing, cost his client another $5,000.
    In his response filed on December 2, 2021 Izadpanahi, once
    again represented by counsel, argued he had acted in good faith
    in attempting to have the judgment entered, based on his
    attempts to understand the process and procedures as (at the
    time) a self-represented litigant. His declaration set out the
    pertinent chronology from his perspective and explained his
    actions. He also attached an income and expense declaration
    (Judicial Council form FL-150), dated December 1, 2021, showing
    for the prior month an income of $11,741 but asserting an
    average monthly income of only $2,730, with average monthly
    expenses of $4,075, and assets totaling $71,000 ($21,000 in a
    checking account; $50,000 in real estate equity).
    4     The $5,030 aggregate sum included fees for addressing
    issues relating to Izadpanahi’s filing of the notice of appeal before
    entry of the judgment.
    6
    In a reply declaration Weiss challenged Izadpanahi’s
    financial information, including, for example, stating that in the
    judgment entered on September 30, 2021, signed by Izadpanahi
    on September 6, 2021, Izadpanahi averred his average monthly
    income was $7,000.
    At the hearing on the motion on December 15, 2021, the
    court expressed concern that Dolkhani had again requested
    sanctions of $75,000 and asked Weiss, “What are the fees
    associated with the back and forth regarding the judgment,
    specifically?” Weiss initially answered $29,250. Then, looking at
    his declaration and invoices attached as exhibits, he responded
    the time related to that matter, not including the current
    hearing, was $10,705.
    After hearing further argument concerning Izadpanahi’s
    conduct with respect to entry of the judgment and briefly
    concerning his ability to pay, the court awarded $10,705 in
    sanctions plus $900 (two hours at $450 per hour) for Weiss’s time
    at the hearing. In explaining its ruling, the court noted Weiss’s
    $75,000 request covered “more than just the judgment issue” and
    stated it was “limiting the scope of the court’s order today” to that
    matter. In that regard, the court found Izadpanahi’s declaration
    explaining why he proceeded with the judgment as he did to be
    neither credible nor compelling. The court continued, “The
    reality is he frustrated the resolution of a very straightforward
    issue by refusing to cooperate. And that’s what 271 sanctions are
    for.” The court then pointed out that Izadpanahi’s income and
    expense declaration showed assets of $71,000, a prior month’s
    income of $11,741, but “for some reason, there’s an average
    monthly that’s much, much less than that,” and concluded, “it’s
    clear to me there’s sufficient money for some sort of sanction.”
    7
    Izadpanahi filed a timely notice of appeal.
    DISCUSSION
    1. Governing Law and Standard of Review
    Section 271, subdivision (a), provides, “Notwithstanding
    any other provision of this code, the 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. An award of attorney’s fees and costs
    pursuant to this section is in the nature of a sanction.” (See
    Boblitt v. Boblitt (2010) 
    190 Cal.App.4th 603
    , 612 [“[t]he duty
    imposed by . . . section 271 requires a party to a dissolution action
    to be cooperative and work toward settlement of the litigation on
    pain of being required to share the party’s adversary’s litigation
    costs”].) An award of fees as a sanction under this section does
    not require any showing of need or actual injury. (§ 271,
    subd. (a); see In re Marriage of Feldman (2007) 
    153 Cal.App.4th 1470
    , 1478-1479.) However, the court is prohibited from making
    an award that “imposes an unreasonable financial burden on the
    party against whom the sanction is imposed.” (§ 271, subd. (a);
    see In re Marriage of Pearson (2018) 
    21 Cal.App.5th 218
    , 233.)
    We review the award of sanctions under section 271 for an
    abuse of discretion. (Menezes v. McDaniel (2019) 
    44 Cal.App.5th 340
    , 347; In re E.M. (2014) 
    228 Cal.App.4th 828
    , 850.) Findings
    of fact that formed the basis for the award are reviewed for
    substantial evidence. (Menezes, at p. 347; In re Marriage of
    Corona (2009) 
    172 Cal.App.4th 1205
    , 1226; In re Marriage of
    Feldman, supra, 153 Cal.App.4th at p. 1479.) The imposition of
    section 271 sanctions will be upheld on appeal unless,
    8
    “‘considering all of the evidence viewed most favorably in its
    support and indulging all reasonable inferences in its favor, no
    judge could reasonably make the order.’” (In re E.M., at p. 850;
    accord, Menezes, at p. 347.)
    2. A Section 271 Sanction Award Was Within the Family
    Court’s Broad Discretion
    Izadpanahi, Dolkhani’s counsel and the family court all
    agreed the process of moving from the court’s July 7, 2021 ruling
    that the 2017 stipulated judgment was enforceable to entry of the
    judgment incorporating that document on September 30, 2021
    became unnecessarily complicated and time-consuming.
    Izadpanahi contended he was doing his best as a self-represented
    litigant. Weiss asserted Izadpanahi had acted in bad faith and
    was being deliberately uncooperative, arguing Izadpanahi
    apparently had no objection to the form of the judgment prepared
    by Weiss since he ultimately submitted it to the court on his own,
    yet refused to sign the judgment package and return it to Weiss
    as requested or even to notify Weiss that he had no objections.
    The court credited Weiss’s narrative, disbelieving Izadpanahi’s.
    As such, it was well within the court’s discretion to award
    sanctions pursuant to section 271 for Izadpanahi’s misconduct.
    Similarly, faced with conflicting evidence regarding
    Izadpanahi’s monthly income and ability to pay a sanctions
    award without imposing an unreasonable financial burden, the
    court’s finding that Izadpanahi could afford the sanctions
    awarded was not an abuse of discretion.
    9
    3. The Family Court Abused Its Discretion in Awarding
    Section 271 Sanctions of $5,000 for Opposing
    Izadpanahi’s Requests for Custody and Visitation Orders
    The family court repeatedly stated—at both the October 7
    and the December 15, 2021 hearings—it would consider
    imposition of section 271 sanctions only for Izadpanahi’s lack of
    cooperation in connection with entry of the judgment. Asked
    point blank on December 15 what the fees were “associated with
    the back and forth regarding the judgment, specifically,” Weiss,
    after first responding with a highly inflated figure of nearly
    $30,000, stated $10,705, which was the amount the court then
    awarded (plus $900 for two hours at the hearing that day).
    But Weiss’s declaration in support of the motion for
    sanctions makes clear his $10,705 answer included $5,000 for
    opposing Izadpanahi’s two post-July 7, 2021 attempts to modify
    the custody and visitation orders, matters not within the
    intended scope of the court’s sanction award. As discussed, Weiss
    spent $5,030 in attorney time on judgment-related issues in July
    and August 2021 and an additional $675 in fees responding to
    Izadpanahi’s ex parte application for entry of the judgment. An
    implied finding that Dolkhani incurred more than that amount in
    fees related to the entry of judgment ($5,705, plus $900) is not
    supported by substantial evidence. And imposition of a
    section 271 sanction for the posttrial requests for custody and
    visitation orders without a finding that Izadpanahi was unduly
    uncooperative would constitute an abuse of the family court's
    discretion. Accordingly, the $11,605 in sanctions awarded must
    be reduced to $6,605.
    10
    DISPOSITION
    The amount of sanctions awarded is reduced to $6,605.
    The order for sanctions is affirmed as modified. The parties are
    to bear their own costs on appeal.
    PERLUSS, P. J.
    We concur.
    SEGAL, J.
    FEUER, J.
    11
    

Document Info

Docket Number: B317763

Filed Date: 3/8/2023

Precedential Status: Non-Precedential

Modified Date: 3/9/2023