Filed 12/11/18 Riverside County Dept. of Child Support Services v. Briscoe CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
| RIVERSIDE COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES,
Plaintiff and Respondent,
v.
TIM K. BRISCOE,
Defendant and Appellant.
|
G054387
(Super. Ct. No. RID398184DA)
O P I N I O N |
Appeal from an order of the Superior Court of Riverside County, Eric Isaac, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Warren Law Group, Randy Warren; Hellmann Law Group and Lawrence Hellmann for Defendant and Appellant.
Bruce Wagner and Hirbod Rashidi for Plaintiff and Respondent.
In Riverside County Department of Child Support Services v. Briscoe (May 5, 2015, G050115) [nonpub. opn.] (Briscoe I) this court concluded two things:
– California did not have personal jurisdiction over Tim Briscoe, a resident of Michigan, until September 11, 2008; thus child support orders entered against him in Riverside Superior Court in 1999 and 2001 were void at least until September 11, 2008.[1]
– A child support order made in Michigan in 1999 was the exclusive operative child support order concerning Briscoe’s son Marion until Briscoe moved to Texas sometime after September 11, 2008. But even though there never was a Texas support order, Michigan relinquished its exclusive jurisdiction in February 2011. That relinquishment allowed California’s support orders to become effective when Briscoe moved to Texas. We did not know exactly when that was.
We therefore remanded the case to the trial court to vacate all California child support orders up to the point of Briscoe leaving Michigan for Texas. Ascertainment of precisely when Briscoe moved to Texas was left up to the trial court on remand. (Id. at pp. 51-52.) And on remand, the trial court did indeed vacate the orders up to the time Briscoe moved to Texas, which the parties stipulated was in July 2011.
On August 13, 2015, Briscoe filed a request for order (RFO) seeking two things: (1) reimbursement for overpayments of child support garnished from his wages in the period up to July 2011, and (2) his fees incurred in the appeal of Briscoe I. His claim for fees in the August 2015 RFO was based on a private attorney general theory under section 1021.5 of the Code of Civil Procedure. Later, on October 6, 2013, he filed an amended RFO also asserting entitlement to fees under Family Code sections 271 and 273.[2] The hearing was not held until late March 2016, with the trial court issuing a formal written decision in late May 2016.
Briscoe was successful as to reimbursement of the overpayments. The court required the Riverside Department of Child Support Services (the Department or DCSS) to provide an accounting of how much, if anything, the Department had been overpaid from Briscoe’s garnished wages over the years.
He was not successful as to (2). The trial court denied the fee request, reasoning that there is a “ban on a government agency paying attorney’s fees in a family law matter[.]” Briscoe has now appealed, challenging the trial court’s denial of attorney fees.
DCSS’s first line of defense is that Briscoe’s RFO was untimely as it was filed more than 40 days after the remittitur in Briscoe I. (See Cal. Rules of Court, rule 8.278(c)(1).) The argument is based on the assumption that Briscoe’s August 13, 2015 RFO didn’t count and we should only consider the October 6, 2015 RFO, since the August 13, 2015 RFO didn’t mention sections 271 or 273. The argument was not raised by the DCSS in its written opposition at the trial level, hence the record does not contain the remittitur date, which was July 6, 2015 (we take judicial notice of our own records, including, of course, all of Briscoe I.[3]).
We cannot agree with the DCSS on this point. The August 13, 2015 RFO was filed 38 days after July 6, 2015.[4] Briscoe’s theory set forth in his August 13 filing was that the DCSS had not conceded he had been improperly served, thus requiring him to go to the expense of appealing to this court. The October RFO was based on the same basic general set of facts, but merely added a new legal theory of recovery, i.e., entitlement under sections 271 and 273. That was enough to have it relate back. (See Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 276-277.)
Nonetheless, we must affirm. Briscoe’s initial theory from his August 2015 RFO – that he should receive fees under a private attorney general theory under section 1021.5 of the Code of Civil Procedure – is a non-starter. That statute has been occluded by section 273, a narrower and newer statute. Section 273 is specific, targeted and encompassing. It limits attorney’s fees against any governmental agency in a child support proceeding to only two kinds of sanctionable conduct – conduct worthy of sanctions under section 271 and conduct worthy of sanctions under section 128.5 of the Code of Civil Procedure.
Section 273 takes precedence over any conflict with section 1021.5. “[N]ewer and more specific statutes take precedence over older and more general statutes[.]” (Allen v. Stoddard (2013) 212 Cal.App.4th 807, 810.) We therefore need not dwell on the relative public importance of the degree to which Briscoe I, for purposes of private attorney general analysis, established the principle that local child support agencies should take more care in assuring that out-of-state alleged fathers should be accorded the elementary due process.
That leaves Briscoe’s other two theories, sanctions under section 271 or Code of Civil Procedure section 128.5. However, there is nothing in his moving papers that showed sanctions under either statute might be a reasonable possibility.
The evil targeted by section 271 is obstreperous conduct in a family law proceeding that “frustrates the policy of the law to promote settlement of litigation[.]”[5] Examples include things like refusing to return opposing counsel’s phone calls or scheduling hearings without notifying the opposing party. (E.g., In re Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1106-1107.) It can also include things like refusing to account for the proceeds of community property (e.g., In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970) or refusing to disclose financial information (In re Marriage of Feldman, supra, 153 Cal.App.4th at p. 1482) or making ridiculous, heads-I-win-tails-you-lose settlement offers in child custody contexts (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 992-993[6]). We do not have that here.
For its part, section 128.5 of the Code of Civil Procedure generally targets litigation of either frivolous actions or actions intended to cause unnecessary delay.[7] Examples include filing a summary judgment motion based on easily disputed facts (Monex International, Ltd. v. Peinado (1990) 224 Cal.App.3d 1619, 1626), repetitive motions for reconsideration (Fegles v. Kraft (1985) 168 Cal.App.3d 812, 816), or filing declarations that are just outright lies (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 127).
Again, we do not have that here. The worst thing that can be said about the DCSS’s conduct in Briscoe I was that the Department did not simply stipulate to Briscoe’s set aside motion. But the Department’s reluctance to give up can hardly be described as frivolous or intended to cause delay, particularly under the seminal Flaherty standard equating frivolousness with indisputable lack of merit. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
We note several items that show the Department’s position was sufficiently reasonable to be well outside the purview of either section 271 or Code of Civil Procedure section 128.5: In Briscoe I, the address at which Briscoe’s alleged sister was served had been sealed under section 17212, subdivision (b)(3), which would have required the Department to seek an order unsealing it under section 17212, subdivision (c)(6) (see Briscoe I, supra, G050115, at p. 6, fn. 3). Nor did Briscoe himself seek to unseal it. Also, the Department had a colorable argument that Briscoe’s set aside request was untimely under section 3691. (See Briscoe I, supra, G050115, at p. 20.)
The real coup de grace to the 1999 and 2001 orders was the lack of minimum contacts with California under Kulko. But Kulko was an issue this court raised sua sponte in a request for further briefing.
Put another way, as our lengthy opinion in Briscoe I showed, sorting out the point at which Briscoe came under California’s jurisdiction was a complex matter, and easily one where the Department might reasonably resist Briscoe’s set aside motion. The order of the trial court is, accordingly, affirmed. Respondent shall collect its costs on appeal.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
FYBEL, J.
[1] There were two independent bases for this determination. One, the service was void because substituted service requires service at the correct address. (Briscoe I, supra, G050115, at pp. 21-21.) That fact distinguishes this case from Trackman v. Kenney (2010) 187 Cal.App.4th 175, where the substituted service was made at an address that was correct, i.e., it was registered to the defendant as his fictitious business name address. (See id. at p. 179.) Two, quite independent of the service, California simply never had sufficient contacts to assert jurisdiction over Briscoe until 2008. Under elementary due process principles as shown in the venerable case of Kulko v. Superior Court (1978) 436 U.S. 84 (Kulko), any California judgment entered prior to September 2008 was void. (See Briscoe I, supra, G050115, at pp. 23-29.)
[2] All further statutory references are to the Family Code unless otherwise indicated.
[3] We deny, however, as irrelevant, Briscoe’s request to take judicial notice of the docket in RID237157.
[4] We should note our copy of the August RFO shows a file stamp of August 13, 2015. In his reply brief Briscoe appears to think the date of the RFO was August 14. The difference is immaterial given our analysis.
[5] Section 271 provides in pertinent part: “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.”
[6] Disapproved on other grounds in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097.)
[7] Subdivision (a) of Code of Civil Procedure section 128.5 provides: “A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3.”
