Irvine Divorce Lawyers – Free Consultation

By Andrew Tran, Esq.

In many family law cases, it is not uncommon to be involved in litigation from time to time, whether it is in the initial case (divorce, paternity, child custody, child support, spousal support, etc.), as well as after the issuance of a court order in a “post-judgment” matter.  Issues such as child custody, child support, and spousal support come up often over the lifespan of parties involved in family law cases.  However, do you find yourself in court unusually often, maybe multiple times a year, due to your spouse, ex-spouse, or other parent always wanting to take you to court for no reason?

This can be frustrating as it consumes a substantial amount of your time and your money. What can you do to deter them? What remedies are available?

Luckily, there are two statutes that apply to what lawyers refer to as vexatious litigants, which provide relief for the innocent party being dragged into court too often:

• California Family Code Section 271 (“FC Section 271): While FC Section 271 allows a party to seek monetary sanctions in the form of attorney’s fees and costs, sanctions are unfortunately limited to attorney’s fees and costs and nothing more. See our FC 271 sanctions page for more details.
• California Code of Civil Procedure Section 128.5 (“CCP Section 128.5”): CCP Section 128.5 provides parties a remedy when an opposing party engages in overly litigious conduct. Under this statute, a trial court may order a party, the party’s attorney, or both to pay any reasonable expenses, including attorney’s fees, incurred by the other party because of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.

These statutes provide the framework for the court to not only monetarily sanction the overly litigious party, but they allow for “other” sanctions as well.  For example, if the Family Court in Orange County finds a party to be a “vexatious litigant” under the statute, the Court may require a hearing prior to allowing the party to file any documents in court.  This is a significant benefit to the innocent party that is not a vexatious litigant.

In the recent case of Sagonosky v. Kekoa (DCA 1), Husband and Wife were involved in an overly-litigious case. Husband and Wife were married for 11 years, but so far have been in 14 years of litigation, have 21 Court of Appeal and 21 California Supreme Court filings. In 2010, the Judgment awarded Husband with 3 properties, and the Court ordered Wife to transfer properties to Husband by a certain date. Instead, Wife decided to appeal and refused to comply with the court orders. In addition, Wife was ordered to deliver all rents to Husband. In 2012, the Court dismissed Wife’s appeal due to a failure to file an opening brief. Nonetheless, Wife still refused to sign the deeds to the properties. Husband decided to move for “mega-sanctions” due to Wife’s ill conduct. In response, Wife moved to disqualify the judges in the case which was ultimately denied. This delayed the sanctions hearing. Then, Wife filed federal damages actions against the judges which further delayed the sanctions hearing. In addition, Wife filed another motion to disqualify the judges in the case and an ADA accommodation demand which was denied. In the end, the trial court ordered the following due to Wife’s conduct: 1) $180,000 for Wife’s interference in the sale of Husband’s residence (one of the properties awarded to Husband); 2) $500,000 to punish Wife for Wife’s “relentless and culpable conduct;” 3) $88,000 related to Husband’s attorney’s fees and costs, and interest; and 4) the court clerk was ordered to sign the deeds for Wife (this is called an “elisor”). The Court of Appeal looked to whether FC Section 271 would authorize such awards. The Court of Appeals held that FC Section 271 limits sanctions to the extent of only attorney’s fees and costs which meant that $88,000 was the only order that was affirmed. Husband’s attorney did not assert CCP Section 128.5 at all.  In the opinion, the Court of Appeals mentioned that all the awards by the trial court might have been authorized under CCP 128.5.

While most attorneys commonly request sanctions under FC Section 271, not many think of and request sanctions under CCP 128.5 as it is not a remedy under the Family Code. Asserting a request for attorney’s fees and costs under CCP 128.5 could mean the difference between getting sanctions merely limited to attorney’s fees and costs, and sanctions which could be “punitive” in nature.

Call or email our office to schedule a free consultation today with one of our attorneys at Wilkinson & Finkbeiner, LLP to discuss how we can help you today.