Filed 12/19/18 Estate of Chamberlin CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Estate of SYLVIA JANE LEVIN CHAMBERLIN, Deceased.
MICHAEL J. LEVIN, as Executor, etc., Petitioner and Respondent, v. CHRISTOPHER CHAMBERLIN, Objector and Appellant; RICHARD A. CHAMBERLIN et al., Claimants and Appellants.	A151002 (Marin County Super. Ct. No. PR1503278)

Objector Christopher Chamberlin appeals from the probate court’s order approving the final accounting and report for the estate of his mother, Sylvia Jane Levin Chamberlin (Estate). The order includes (1) $16,641.03 awarded to the executor (Sylvia’s brother Michael Levin)[1] as reimbursement for payments advanced on behalf of the Estate, along with $5,553.20 for his personal expenses; (2) attorney fees to Levin’s attorney, consisting of $13,399.28 in statutory fees and $27,372.50 in extraordinary fees; and (3) reimbursement to Christopher of $9,114.14 out of the $15,004.05 he claimed he was owed for his own Estate-related advances. On appeal, Christopher contends the court erred in denying his request for an evidentiary hearing on various accounting and disbursement issues. In a cross-appeal, claimants Don Partier and Richard Chamberlin challenge the court’s denial of a request to charge Christopher’s interest in the Estate for attorney fees incurred as a result of his alleged bad faith litigation tactics. We affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On January 1, 2014, Sylvia executed her will.

Sylvia died on June 21, 2015. She is survived by two sons, Christopher and Richard. Partier was her longtime partner. The will left one-third of the Estate each to Christopher, Richard, and Partier. In her will, Sylvia nominated Levin as the executor of the Estate. The main asset of the Estate was the two-unit houseboat where she and Partier had resided, along with an upstairs tenant.

On September 4, 2015, Levin filed a petition for probate of the will and for letters testamentary.

On November 24, 2015, Levin filed an amended petition for probate.

On January 4, 2016, the probate court filed its order appointing Levin as executor of the Estate.

On January 6, 2016, the probate court issued letters testamentary.

On February 12, 2016, a court-appointed probate referee submitted declaration valuing the houseboat at $360,000.

On April 18, 2016, Levin filed a petition for instructions seeking authorization to market the houseboat for an asking price of $435,000.

On May 11, 2016, Christopher filed an opposition and cross-petition to Levin’s petition for instructions, seeking to remove Levin as executor and to be appointed as successor executor, and for an order compelling an accounting. Christopher claimed Levin was engaging in a “conspiracy” to sell the houseboat to Laurel Braitman, the houseboat’s upstairs tenant, at a “substantially sub-market price.”[2] He also asserted Levin had improperly allowed Partier to rent out a room in the lower unit while also collecting rent from Braitman. Christopher also asked that Levin be surcharged for having failed to collect rent from Partier after Sylvia’s death.

On June 10, 2016, Levin filed a demurrer to the cross-petition. Levin argued that Christopher had failed to properly allege a civil conspiracy. He also asserted that Christopher had not alleged any of the statutory grounds under Probate Code[3] section 8502 for removing an executor. He also noted that the will did not designate Christopher as an alternative executor, and any allegations concerning an accounting of the Estate were premature under section 10951, which allows 12 months for an accounting to be filed after letters testamentary are issued.

On July 26, 2016, Partier filed a joinder to Levin’s petition for instructions, the demurrer, and Levin’s soon-to-be-filed motion for sanctions.

On July 28, 2016, Levin submitted a motion for sanctions against Christopher under Code of Civil Procedure section 128.7, subdivisions (b) and (c)(1). The motion noted the statute provides for a 21-day period during which a party who has failed to allege a standalone cause of action may dismiss their pleading to avoid sanctions.

On August 8, 2016, Christopher filed an opposition to Levin’s demurrer.

On August 12, 2016, Christopher filed his opposition to the motion for sanctions.

On September 6, 2016, the probate court filed its order sustaining Levin’s demurrer without leave to amend. The written order does not reference Levin’s motion for sanctions. However, the minute order from the hearing on the demurrer reveals that the motion for sanctions was denied.

On September 15, 2016, the parties filed a stipulation for an order authorizing Levin to list the houseboat for sale with a $499,000 asking price.

On October 24, 2016, Levin filed a notice of proposed action, indicating, that the houseboat was in contract to be sold for $499,000.

On November 23, 2016, the houseboat was sold for $499,000.

On December 28, 2016, Levin filed a petition for final distribution. The petition reported that Partier had resided in the lower unit of the houseboat from January 2016 to June 2106, and had agreed to pay $1,200 per month in rent. Christopher was to be reimbursed a total of $9,114.14 for funeral-related expenses. Levin sought reimbursement for $16,641.03 in expenses paid on behalf of the Estate, along with $5,553.20 in personal expenses. He also sought $13,399.28 in statutory compensation. Levin further alleged that his law firm was entitled to $13,399.28 in statutory compensation, along with $44,933.61 in extraordinary services. A significant portion of the extraordinary services were attributed to the “barrage of paperwork” arising out of Christopher’s opposition to Levin’s petition for instructions. After all the expenses were accounted for, the beneficiaries were to receive the following amounts: Christopher would receive $108,605.86, Richard $99,471.74, and Partier $92,291.74.

On January 17, 2017, Levin’s attorney filed his declaration in support of his request for extraordinary attorney fees.

On February 16, 2017, Christopher filed his objection to the petition for final distribution and a nonspecific request for an evidentiary hearing. Among other things, he complained that Levin had failed to account for the Estate during the six months following Sylvia’s death, and had improperly allowed Partier to manage the Estate during that time without charging him rent. He also questioned Levin’s own reimbursements and objected to the extraordinary attorney fee claim, arguing that Levin’s counsel had unreasonably opposed his (Christopher’s) efforts to increase the valuation of the houseboat for the benefit of the Estate.

On February 17, 2017, Partier filed an objection to the final account and petition for distribution, challenging the rent charges and complaining about Levin’s failure to request an award of attorney fees and costs against Christopher. That same day, Richard filed a joinder to Partier’s objection. Levin also filed a partial joinder to Partier’s objection.

On February 21, 2017, the probate court ordered Christopher to provide an offer of proof as to why the court should set a three-day evidentiary hearing on his objection.

On March 6, 2017, Christopher filed an offer of proof, reserving his rights to discovery and an evidentiary hearing. The first page states: “As this Offer of Proof was ordered to be made before discovery could be done on the Objections to the Petition Filed on February 16, 2017, this offer of proof is made to explain Christopher’s predictions of written and oral evidence’s likely substance, purpose, and relevance.” (Fn. omitted.)

On March 7, 2017, Levin filed his response to Christopher’s objections, attaching as exhibits almost 300 pages of source documents supporting the Estate’s accounting.

On March 10, 2017, Levin filed his response to Christopher’s offer of proof. He argued that the offer of proof was defective on its face because it was both conclusory and nonspecific. He also asserted that the issues Christopher had raised were either barred by the res judicata effect of the probate court’s having sustained the demurrer to the cross-petition, were irrelevant, or were moot. That same day, Partier also filed a response.

On March 15, 2017, a hearing was held during which Christopher’s counsel again requested an evidentiary hearing.

On April 4, 2017, the probate court filed an amended order after hearing and final distribution order. In the final distribution order, the court granted the majority of Levin’s requests and overruled Christopher’s objections. The order did not charge Christopher with attorney fees or sanctions. No statement of decision was requested or issued.

On July 19, 2017, we granted Levin’s motion to dismiss Christopher’s appeal as to the September 6, 2016 order sustaining Levin’s demurrer.

DISCUSSION

I. Christopher’s Appeal

A. Right to an Evidentiary Hearing

Christopher’s primary contention on appeal is that the probate court erred in granting the petition for final distribution without allowing an evidentiary hearing. Section 1022 provides: “An affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under [the Probate Code].” The Probate Code does not include a provision “authorizing the substitution of affidavits for oral evidence in a contested probate proceeding.” (Estate of Fraysher (1956) 47 Cal.2d 131, 135 (Fraysher).) “Thus when challenged in a lower court, affidavits and verified petitions may not be considered as evidence at a contested probate hearing.” (Evangelho v. Presoto (1998) 67 Cal.App.4th 615, 620.) Rather, absent a stipulation among the parties to the contrary, each allegation in a verified petition and each fact set forth in a supporting affidavit must be established by competent evidence. (Ibid.; Estate of Duncan (1969) 1 Cal.App.3d 212, 215.) This rule is consistent with the long-established rule of civil practice that “ ‘[a] party is entitled to have received in evidence and considered by the court, before findings are made, all competent, relevant and material evidence on any material issue.’ ” (Meadows v. Lee (1985) 175 Cal.App.3d 475, 488; see § 1046.)

The right to an evidentiary hearing, however, is not absolute. As in all civil actions, a party is entitled to present evidence only if the evidence is “competent, relevant and material” to a disputed issue. (Estate of Horman (1968) 265 Cal.App.2d 796, 808–809; see § 1000; Evid. Code, §§ 210, 351, 352.) In ruling on these matters, a probate court has flexibility to manage its proceedings to further the Estate’s best interests and reduce unnecessary expenses. (See Estate of Ferber (1998) 66 Cal.App.4th 244, 253.)

We review a court’s evidentiary rulings for an abuse of discretion.[4] (O’Neal v. Stanislaus County Employees’ Retirement Assn. (2017) 8 Cal.App.5th 1184, 1198–1199; § 1000.)

Under the principles set forth above, a trial court may require, for example, an offer of proof before permitting oral testimony and may order that the offer be specific in identifying the purpose of the testimony, the name of the proposed witnesses, and the general content of the answers to be elicited. (See In re Grace P. (2017) 8 Cal.App.5th 605, 612; see also In re Mark C. (1992) 7 Cal.App.4th 433, 444.) “An offer of proof should give the trial court an opportunity to change or clarify its ruling and in the event of appeal would provide the reviewing court with the means of determining error and assessing prejudice. [Citation.] To accomplish these purposes an offer of proof must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.” (People v. Schmies (1996) 44 Cal.App.4th 38, 53, italics added.) If the offer does not show that the proposed testimony would be relevant and material, the court has the discretion to deny the request. (See Conservatorship of McElroy (2002) 104 Cal.App.4th 536, 553–555.)

Here, Christopher has made an insufficient showing that an evidentiary hearing was required. He relies, in part, on Estate of Bennett (2008) 163 Cal.App.4th 1303 (Bennett). Bennett involved an appeal from a probate court order granting a motion to set aside an agreement the decedent’s heirs had made assigning their interests in his estate to two corporations. (Id. at p. 1305.) Based on affidavits alone, and despite the corporations’ request for an evidentiary hearing, the probate court set aside the agreement based on fraud and a mistake of fact. (Id. at pp. 1307–1308.) The parties submitted multiple, conflicting declarations as to the material facts, and each side filed evidentiary objections to the opposing party’s declarations. (Id. at p. 1308.) In opposing the motion, the corporations’ counsel argued, “petitioners’ motion ‘bespeaks nothing but factual issues which require . . . [a] full evidentiary hearing . . . .’ ” (Id. at p. 1307.) At oral argument, he again pointed out “ ‘[a]ll you have [are] declarations where everybody contradicts each other.’ ” (Id. at p. 1308.) The trial court nonetheless granted the motion without requiring an evidentiary hearing. (Ibid.)

The Court of Appeal reversed, finding an evidentiary hearing was required. (Bennett, supra, 163 Cal.App.4th at p. 1310.) The court first noted sections 1000 and 1022 were both relevant to the use of affidavits in probate proceedings. (Bennett, at p. 1309.) Notwithstanding Code of Civil Procedure section 2009, which generally permits the use of affidavits in civil proceedings, the court in Bennett construed these Probate Code sections to mean that affidavits “on the merits” may not be used as a substitute for oral testimony in contested probate proceedings. (Bennett, at p. 1309.) The court’s analysis was set forth as follows: “It is true the restriction on the use of declarations in contested probate hearings is inapplicable when ‘the parties d[o] not object to the use of affidavits in evidence and both parties adopt[] that means of supporting their positions.’ [Citations.] But here, [the corporations], while opposing the motion on the merits, also asserted in written opposition and at the hearing that the factual conflicts presented by the parties’ competing declarations mandated an evidentiary hearing. Consequently, the issue was preserved for review in this case.” (Ibid.)

Christopher also relies on Estate of Lensch (2009) 177 Cal.App.4th 667 (Lensch). Lensch involved a petition to determine whether there was sufficient evidence the decedent’s son had survived her and could therefore take under her will. (Id. at p. 671.) The petition relied on statements made by the coroner who investigated the son’s death that he could not determine the precise time of death. (Id. at pp. 671–672.) The son’s executor opposed the petition, relying on the times of death shown on the death certificates of the decedent and her son, and arguing the petition was based on “ ‘inadmissible opinions, speculation, and hearsay.’ ” (Id. at p. 672.) The probate court, erroneously believing survivorship was not material under the decedent’s will, denied the petition to determine survival without an evidentiary hearing. (Id. at pp. 672–673.) Relying on the death certificates, the court also ruled in the alternative that the son did in fact survive the decedent. (Id. at p. 672.)

The Court of Appeal found first that the question of survivorship was material under the antilapse statute (§ 21110) even if the will itself contained no survivorship requirement. (Lensch, supra, 177 Cal.App.4th at p. 673.) On the issue of whether an evidentiary hearing was required to determine that issue, the court observed that in his opposition the respondent objected specifically to the appellants’ petition on the ground it relied on inadmissible evidence, and he submitted evidence conflicting with that of the appellants. (Id. at p. 677.) Citing these factors, the court found an evidentiary hearing was required. (Ibid.)

In our view, Bennett and Lensch do not stand for the proposition that merely filing an objection to a probate petition accompanied by a general request for an evidentiary hearing is sufficient to require such a hearing in all cases.[5] Based on the facts and analysis of the two cases, and the earlier case law on which they rely, before a hearing is required, at least one of two further requirements must be met. First, one or both parties must challenge the admissibility of the opposing party’s verified petition and/or declarations. Second, there must be some showing there are factual issues in dispute material to the determination of the petition which could turn on the credibility of witnesses. In Bennett and Lensch, both conditions were satisfied. Evidentiary objections were made to the opposing party’s submissions in both cases, and there were obvious factual conflicts in the parties’ submissions that were material to the issue before the court.

Here, Christopher filed objections to the final account and he requested an evidentiary hearing, but we find nothing in his opposition to indicate he ever (1) challenged the admissibility of Levin’s petition or the supporting declarations filed along with it, or (2) identified any factual conflicts in the parties’ submissions material to resolving his objections. While his opposition challenged the legitimacy of certain Estate expenditures and complained of deficiencies in Levin’s accounting, Christopher did not specify any material factual conflicts, or identify any additional evidence he sought to adduce that would have justified an evidentiary hearing.

Christopher stated his offer of proof was made “to explain [his] predictions of written and oral evidence’s likely substance, purpose, and relevance. (Italics added.) As we have discussed above, the statutory and case law Christopher relies upon do not afford him an automatic right to an evidentiary hearing merely because he disagreed with Levin’s actions as executor of Sylvia’s Estate. Absent a colorable objection to the admissibility of evidence supporting the petition, Christopher was required to show the existence of one or more material factual disputes. Since he failed to do that, the probate court properly denied his request for an evidentiary hearing.[6]

The probate court was also properly concerned with preserving the Estate’s assets for all the beneficiaries. The court noted that an executor is not required to maximize the assets of an Estate, only preserve them, observing that litigating Christopher’s rent‑related claims[7] would cost much more in attorney fees than the actual amount in controversy. The court then stated: “Well, what I’m concerned about here is that an evidentiary hearing, even if it’s less than the three days that I was told before today, is just more attorney’s fees being thrown down this rat hole to what end?” Christopher’s counsel then raised the issue of transactions occurring during the initial period after decedent’s death when Partier was, it appears, essentially managing the Estate. He also questioned certain of Levin’s travel expenses, claimed Christopher was entitled to more in reimbursement than provided for in the final petition, and challenged Levin’s request for extraordinary attorney fees.[8] Levin’s counsel countered that he had supplied almost all the information necessary to address Christopher’s claims in the papers submitted in the March 7, 2017 response to Christopher’s objection. He agreed that certain expenses claimed by Partier were not documented, but noted the amounts were de minimus, totaling no more than $2,000. Notably, Partier also attended the hearing and offered to submit copies of cancelled checks showing that these reimbursements were for houseboat-related expenses. The court reasonably concluded that it had all the evidence it needed to rule on Levin’s petition, and that allowing the proceedings to drag on would have been counterproductive.

Christopher further complains that he was not able to conduct discovery before the probate court required him to submit an offer of proof. He states that he could not validly have initiated discovery until after he filed his objections to the petition for final distribution on February 16, 2017, leaving him insufficient time to acquire evidence for the offer of proof. He also contends that requiring him to make a premature offer of proof was procedurally improper. Yet his objections to Levin’s petition were not based on factual disputes. Instead, they consisted mostly of criticisms and second-guessing of the actions that Levin took as administrator of the Estate. Further, he included approximately 40 pages of exhibits substantiating his claims. He did not complain that he had insufficient evidence to support his objections.

Finally, Christopher claims the probate court erred when it overruled all of his objections in the petition for final distribution because the court’s use of the offer of proof procedure was effectively a ruling on a motion for summary judgment. The argument appears to be a reiteration of his prior arguments, which we have already found to be lacking in merit.

B. Any Error Was Not Prejudicial

Assuming the probate court erred, Christopher has not met his burden to show prejudicial error from the denial of his request for an evidentiary hearing. Under the California Constitution, prejudice is not presumed, and must result in a “miscarriage of justice.” (Cal. Const., art. VI, § 13.) To satisfy this standard, a party seeking reversal must establish “ ‘ “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” ’ ” (Conservatorship of Maria B. (2013) 218 Cal.App.4th 514, 532; see Wilcox v. Hardisty (1922) 60 Cal.App. 206, 213.) On our review of the record, it is not reasonably probable the court would have reached a determination more favorable to Christopher if his counsel had been permitted to propound discovery.

Executors are entitled to be reimbursed for necessary estate administration expenses, including expenses incurred for the care, management, preservation, and settlement of the estate. (See § 11004.) The probate court has broad discretion in determining the reasonableness and necessity of the expenditures. (See Estate of Turino (1970) 8 Cal.App.3d 642, 648.)

Christopher states that if he had been allowed time for discovery, he could have requested Levin’s credit card statements “to determine whether [the charges] actually benefited the Estate, and, if so, whether they were reasonable.” He also would have deposed Levin to question him “as to his charges for several days of travel from New Jersey to California to attend procedural hearings at which he could have appeared by telephone,” and on “his promise to reimburse Christopher’s payment of Estate expenses.”[9] However, the parties collectively submitted voluminous amounts of evidence relevant to their claimed expenses, including some of Levin’s credit card statements. The probate court thus had enough information to decide whether the claimed reimbursements were valid.[10] The record does not indicate the proposed discovery would have provided information that would have altered the court’s exercise of discretion on the relevant matters.

II. Partier’s and Richard’s Cross-appeal

A. Contentions

Partier and Richard have cross-appealed from the final distribution order to the extent it fails to surcharge Christopher’s interest for his “bad faith” litigation. They allege that Christopher and his wife submitted “mountains of rambling, incoherent, and legally incognizable pleadings” in alleging a “non-existent conspiracy,” forcing them “to deplete their Estate interests on attorney’s fees.” They also assert that the cross-petition “was totally and completely without merit” and was instituted “for the sole purpose of harassing the opposing parties,” warranting sanctions pursuant to Code of Civil Procedure sections 128.5 and 128.7.[11] They do not appear to be challenging Christopher’s opposition to the final accounting. Instead, their cross-appeal is based on the argument that the probate court erred in failing to make a finding of bad faith or improper purpose when it sustained Levin’s demurrer to the cross-petition without leave to amend.

B. Legal Principles and Standard of Review

A court may impose sanctions under Code of Civil Procedure sections 128.5 and 128.7 where a party’s opposition was filed for an improper purpose or was indisputably without merit, either legally or factually. (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) Code of Civil Procedure section 128.5 provides in part: “(a) A trial court may order a party, the party’s attorney, or both, to pay any reasonable expenses, including attorney’s fees, incurred by another party as a result the actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay. . . . [¶] (b) For purposes of this section: [¶] . . . [¶] (2) ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (Code Civ. Proc., § 128.5, subds. (a), (b)(2).) The cases interpreting the cited provisions hold that Code of Civil Procedure section 128.5 has greatly extended the power of the trial court to award attorney fees and monetary sanctions in order to discourage frivolous litigation. (Muega v. Menocal (1996) 50 Cal.App.4th 868, 873 (Muega).)

Code of Civil Procedure section 128.7, subdivision (b) provides, in relevant part: “By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, . . . an attorney . . . is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: [¶] (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. [¶] (2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. [¶] (3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” The statute is modeled after rule 11 of the Federal Rules of Civil Procedure (28 U.S.C.). (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.)

“ ‘It is well settled that the award of sanctions under [Code of Civil Procedure] section 128.5 is a discretionary act on the part of the trial court. [Citation.] As the court stated in 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 19–20 . . .: “Under the appropriate standard of review of an order awarding sanctions under [Code of Civil Procedure] section 128.5, it is not the province of this court ‘to consider the record on appeal to determine if appellant’s conduct meets the standards of frivolousness. . . . [¶] . . . Where the issue on appeal is whether the trial court has abused its discretion, the showing necessary to reverse the trial court is insufficient if it presents facts which merely afford an opportunity for a different opinion: “An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice. . . .” ’ ” ’ ” (Muega, supra, 50 Cal.App.4th at pp. 873–874, original italics.)[12]

We find no “manifest miscarriage of justice” in this case. While the trial court did sustain Levin’s demurrer, at no time did it suggest that Christopher’s litigation efforts were either “totally without legal merit” or were instigated “for the sole purpose of harassing an opposing party.” “A claim is factually frivolous if it is ‘not well grounded in fact’ and it is legally frivolous if it is ‘not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’ [Citation.] In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. [Citation.] A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’ ” (Peake v. Underwood, supra, 227 Cal.App.4th at p. 440.)

While the record on appeal does not contain an explanation of the probate’s court denial of sanctions at the time it sustained the demurrer, at the hearing on the order for final distribution, the court stated that allowing further litigation of Christopher’s contentions, even if the contentions were legally meritorious, would be more detrimental to the Estate than not because the amounts in dispute were not worth the attorney fees that would be incurred. This conclusion is fully supported by the record. The court did not express the view that Christopher’s claims were entirely lacking in merit. We also note that after Christopher filed his opposition to the final accounting, Levin produced almost 300 pages of documents supporting his petition. This suggests Christopher’s opposition was not wholly frivolous. Nor did the court suggest that it believed the opposition was filed solely to harass the other parties and perpetuate delay. The reasoning expressed at this hearing is consistent with the court’s initial decision to deny the motion for sanctions when it sustained Levin’s demurrer. While we do not mean to suggest that we in any way condone Christopher’s legal tactics, we cannot say that the court’s decision to refrain from imposing sanctions on him constitutes a “manifest miscarriage of justice.”

DISPOSTION

The judgment is affirmed. The parties are to bear their own costs on the appeal and cross-appeal.