Marriage of Pearlstein

Filed 12/10/07 Marriage of Pearlstein CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Irwin R. Pearlstein (Irwin) appeals an order of December 16, 2005, that awards former spouse Julie Pearlstein (Julie) attorney fees of $20,000 (Fam. Code,  2030)^[1]payable directly to counsel. He claims lack of support for the amount, and complains of lack of specificity as to which of several fee requests it applies and, since Julie was her own counsel at the hearing, which of her former attorneys to pay. Julie continues to represent herself on this appeal and has not filed a respondents brief. We uphold the award but remand for clarification of payment.

Background

The parties union was brief, from late 1988 until separation in 1990, when their daughter Alexandra was a year old, yet the aftermath has resulted in copious litigation. In the last fully perfected appeal, In re Marriage of Pearlstein (2006) 137 Cal.App.4th 1361 (Pearlstein I), Irwin obtained reversal of an August 2004 order of child support that also imposed attorney fees and sanctions. The published portion of our decision found error (by the Hon. Donald J. Liddle) in the treatment of stock and cash from a business sale as Irwins income for support purposes. (Id. at pp. 1372-1377.) Unpublished parts found further error in income calculations and in the sanctions award. (Id. at pp. 1363-1364.) The fee matters now before us arose between the time of the appealed order and the decision in Pearlstein I, and mostly came before the Honorable James H. Libbey.

First request. It began with Julies response to a motion by Irwin to reduce child support effective January 2005. Julies October 13, 2004 response, prepared by counsel Dana Santos, sought fees of $900 (five hours) for opposing the motion. In a separate filing the same day, Santos requested fees as sanctions under section 271.^[2] The request was unclear, claiming first $9,245 for 51 hours of work (accounting will be made to the Court upon request), then closing by seeking $2,500 and an order for $10,000 in fees and costs post-trial through October 21, 2004. Santos had been an associate for the law firm of Whiting, Fallon & Ross (the Whiting firm), whose work was the subject of the fee award in Pearlstein I, but the new fees were claimed for work Santos had done since leaving the Whiting firm and opening her own practice.

Second and third requests. The very next day, October 14, 2004, Julie filed a motion seeking $25,000 to defend the order on appeal in Pearlstein I, plus $10,000 in fees for the period February 2004 through October 21, 2004, a period that overlapped the time period for the August 24 fees award in Pearlstein I. On November 3, 2004, Judge Liddle ordered Irwin to pay advance fees and costs of $10,000, under section 2030, toward Julies appeal costs in Pearlstein I, and reserved her request for fees from February through November pending trial on the support reduction, which was set for January 14, 2005.^[3] (Irwin represents in his brief that he paid the $10,000 to Mr. Wolf as ordered.)

Trial on January 14 was before Judge Libbey. Julie testified, as to fees, that she had paid the Whiting firm $20,128, and owed them nothing further, but had been unable to pay appellate counsel Bernard Wolf, or Santos, anything and currently owed Santos about $13,000 for work done for her since leaving the Whiting firm.

Trial was continued to March 11, and on the day before that hearing, Julies counsel, Santos, filed a declaration regarding amounts of attorney fees ordered and paid. Santos recounted a history of payments to former counsel, the Whiting firm, and attached a printout from that firm. Santos also alluded to her own pending motion for attorney fees and costs, but offered no information about the motion.

Continued trial yielded an order, filed March 24, reducing child support. The courts order and statement of decision made findings regarding the parties financial situations but no ruling on any of Julies fee requests. Julie objected to the decision and, before a hearing could be held on the matter, also appealed the order, an appeal docketed in our court as number A110546. The court heard the objections and, on June 6, confirmed its decision without change. Julies failure to file an appellants opening brief led to a September 6, 2006 involuntary dismissal of that appeal.

Fourth request. Meanwhile, on May 12, Julie filed another motion for costs and fees ( 2030), plus sanctions ( 271) of $5,000. This one largely duplicated her third request, adding amounts accrued since then, for a total of $19,378.31 owed to Santos, and Santos this time attached itemized billing for her work. Santos separately filed an updated version of the fee payments by Irwin, declaring as well that Julie had paid her $3,000.

Irwin countered with a request for sanctions ( 271).

Fifth request. Julie filed a final fees motion on June 22, this one for a further $10,000 for ongoing work on the appeal in Pearlstein I. Supporting the motion was a declaration by Lance Russell, co-appellate counsel with Bernard Wolf. Russell stated his experience as including 25 years in family law, including appellate work, and that, given the complexity, length of record and issues in the appeal, he conservatively estimated that Julie would require an additional $10,000 in fees and costs to defend herself . . . based on my billing rate of $290/hr.

The court set all fee matters, including the cross-motions for sanctions, for a consolidated hearing to occur on October 14. In a setting order addressing objections Irwin had lodged against Julies various fee motions, the court began, There are three pending motions but they will be handled as two, the trial attorney fee motion (filed October 13, 2004 and May 12, 2005) and the appellate attorney fee motion (filed June 22, 2005). Irwins counsel subsequently used that same characterization in filed papers.

The setting order of July 26 rejected Irwins objection, as to appellate attorney fees, that the November 2004 fee award of $10,000 precluded further fees for the appeal. As to trial attorney fees, the order deemed an objection that Julies income and expense declaration (IED) had been filed late hypertechnical and moot due to continuances. Finally, an objection that Julies motion based on  271 does not give sufficient notice was a more difficult issue because of due process requirements that reasonable notice of sanctionable conduct be given. This has not occurred to date, the court wrote, but would be easily remedied by Julie filing a Bill of Particulars (or call it what you will) setting forth with reasonable specificity the conduct of [Irwin] and/or [his] counsel that allegedly supported the section 271 motion. Julie was directed to do so by August 12, and a hearing on both the trial attorney fee motion (two [of] them) and the appellate attorney fee motion (one of them) was set for October 14.

The fees hearing. Julie appeared as her own counsel at the hearing, Santos having substituted out shortly after the setting order. Julie never filed the ordered bill of particulars but, rather, refiled copies of her filings from the sanctions requests of October 2004 and May 2005, all of which Irwin objected to and moved to strike as unverified and hearsay, among other things. Irwin also moved to strike, objecting on relevancy and other grounds, declarations filed by Julie.

Testimony from the parties focused on income and expenses and some matterslike their timeshare arrangements with the daughterthe court cut short as irrelevant to any fee issue. Irwin requested a statement of decision, with rulings on his objections, and the matter was argued and submitted.

Decision. A statement of decision issued December 16 included the requested evidentiary rulings. On the substance of the fees issues, the court first incorporated by reference its findings from the statement of decision of March, stating that the recent hearing had produced little of value on the issue of comparative wealth and income of the parties and had shown that little ha[d] changed since the March hearing. The court noted that, at this new hearing, [Irwin] testified that in the month prior to that hearing, he had sold $25-$30,000.00 in stock to fund his current household and living expenses (this while [Julie] gets by on her $4,000.00 per month plus modest commissions plus child support when it is paid). [] The bottom line is simply that [Irwins] wealth is far, far in excess of [Julies] and while he is currently between projects which would produce current earnings, his earning capacity is far greater than hers and his lifestyle is not impacted by his current drop in current earnings. [] The requirements of the law to produce a level playing field drive this decision. This decision is based on [section] 2030.

The court declined to impose sanctions ( 271) on either side, noting with evident dismay that both contributed to years of litigation, making degrees of fault difficult to assign, that [n]either party can be accused of thrift in the litigation or  turning the other cheek,  and that fault was not one-sided.

The order was as follows: [Irwin] shall pay as and for a portion of [Julies] attorney fees and court costs herein the sum of $20,000.00 which amount is payable directly to counsel . . . . Irwin timely appeals.

Discussion

Julies failure to file a respondents brief means that we decide the appeal on the record, the opening brief, and any oral argument by the appellant (Cal. Rules of Court, rule 8.220(a)(2), formerly rule 17(b)), examining the record on the basis of Irwins brief but reversing only if prejudicial error is shown (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1041-1942; County of Lake v. Palla (2001) 94 Cal.App.4th 418, 420). Irwin is held to the burden of affirmatively showing prejudicial error (City and County of San Francisco v. Funches (1999) 75 Cal.App.4th 243, 244-245). We begin by presuming that the record contains evidence to sustain every finding and require him, as appellant, to demonstrate that there is no substantial evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) We resolve all conflicts in favor of the judgment and indulge all legitimate and reasonable inferences to uphold it. When two or more inferences can be reasonably deduced from the facts, we are without power to substitute our deductions for those of the trier of fact. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429; Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.) Failure to cite all material evidence in the record, for and against a finding, waives any claim that the finding lacks support. (Ibid.; In re Marriage of Fink (1979) 25 Cal.3d 877, 887-888.)

Irwin faults the award as, first, not supported by substantial evidence, second, leaving him unable to comply given the order to make payment directly to counsel, while Julie had several prior counsel and was unrepresented at the time, and third, leaving him exposed to further awards based on the same time periods because the order does not specify which of Julies five pending fee requests are being satisfied. We examine these contentions in a different order.

I. Multiple fee requests

We do not share Irwins concern that, by not specifying all of Julies fee requests, the order left some pending. The order setting the fees hearing stated: There are three pending motions but they will be handled as two, the trial attorney fee motion (filed October 13, 2004 and May 12, 2005) and the appellate attorney fee motion (filed June 22, 2005), and Irwins own counsel later used that same characterization in filed papers, apparently without confusion.

The specified dates correspond to what we have designated Julies first, fourth and fifth requests, but no prejudice was created by omitting mention of the second and third requests, filed together on October 14, 2004. Those requests sought $25,000 to defend the Pearlstein I order on appeal, plus $10,000 in fees for work Santos had done through October 21, 2004, since leaving the Whiting firm. Judge Liddle granted Julie advance appeal fees and costs of $10,000, thus implicitly denying her the rest of the $25,000 and leaving no part of that request pending. This is undoubtedly why Judge Libbey did not mention it in his setting order. Judge Liddle reserved a ruling on the 2004 trial fees request, and this $10,000 amount was indeed left pending when Judge Libbey did not rule on it during the ensuing child support reduction proceedings. That amount, however, was obviously included in Julies May 12, 2005 fourth request, for $19,378.31, which was essentially her third request updated to include fees and costs incurred since then. Judge Libbey presumably did not acknowledge the earlier request because it was subsumed within the later request.

Thus, while the December 16 award did not break down the award as between the various prior fee requests, it effectively disposed of them all.

II. Substantial evidence

A fees award is discretionary and must be reasonably necessary to maintain or defend an action, considering the relative circumstances of the parties (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314-315); a court considers the full circumstances, including need, ability to pay, and the skills needed to litigate the case (id. at p. 318).

We do not understand Irwin to challenge support for the courts findings, and adopted prior findings, on the parties relative circumstances and ability to pay.^[4] He waives such challenge, in any event, by failing to marshal all of the evidence, for and against those findings. (In re Marriage of Fink, supra, 25 Cal.3d at p. 887.) Irwin does claim that the court abused its discretion by not considering anything but the relative financial situations, saying the court ignored statutory factors like the nature of the litigation, its difficulty, the attorneys experience, and the legal skills required and employed in the litigation. (In re Marriage of Cheriton, supra, 92 Cal.App.4th at p. 318.) This, however, is belied by the record, which shows argument on those factors, and by the statement of decision, which comments on the parties cross-accusations of fault and noncooperation. This judge was also intimately familiar with the course of the litigation, having presided over most matters for the previous year. We presume on appeal that a trial court properly followed established law (Ross v. Superior Court (1977) 19 Cal.3d 899, 913; Evid. Code,  664), and this record does not rebut that presumption.

That leaves us with argument by Irwin that no substantial evidence supports the $20,000 amount of the award. This is predicated in part on argument, already rejected as forfeited (fn. 4, ante), that Julie violated local rules on the form and content of supporting declarations. Irwin refers vaguely to the doctrine of res judicata having barred some of the requested relief, but we uphold the setting orders rejection of this claim. It correctly observes that nothing in the wording of Judge Liddles prior $10,000 award for appeal expenses precluded a request for further appeal fees and costs. Irwin does not address that ruling, much less show that it was erroneous.

Another aspect of Irwins res judicata argument is that the August 20, 2004 order, appealed in Pearlstein I, included a fees award to Julie of $15,000 (less offsets) and that the award here was supported in part by billings over $19,000 for work done by Santos from June 2004 into May 2005, and thus was partly covered by the Pearlstein I order. There are two problems with this argument. First, we have in our record the Pearlstein I order, but no supporting fee request filings to ascertain whether, in fact, any of those fees included work done between June and August 20 of 2004. Irwins burden on appeal is to show error by an adequate record (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575), and he fails to do this. Second, and also due to lack of an adequate record of Pearlstein I, we cannot tell whether the fees awarded there were for any work Santos did apart from what she might have done as part of the Whiting firm. The request here was for work done for Julie after Santos left the Whiting firm.

Irwin complains that Julie did not justify having hired co-appellate counsel, Lance Russell, and did not clarify, in filings or her testimony, how she used the prior $10,000. However, Irwin represents twice in his briefing that he paid the initial $10,000 directly to Mr. Wolf, as ordered, which we take as a concession that the award went to Wolf for his work on the appeal. This is corroborated in the record by an April 2005 letter from Wolf, who states that he has received Irwins opening brief and, in estimating total appeal fees and costs of about $20,000, states that the court had so far awarded $10,000. The June 2005 request was also supported by a declaration from Russell, who estimated additional fees based on his billing rate of $290 an hour, and this implies that the new request contemplated services from Russell, not Wolf, whose hourly fee is revealed earlier as $475. Moreover, the difference in the two attorneys billing rates implies lack of prejudice to Irwin in having Russell work on the case.

Irwin asserts that none of the requests, individually or cumulatively, supported an award of 20,000. We disagree and find support in the May and June filings. The appeal expenses were supported by Russells declaration. He acknowledges the prior award of $10,000 and requests an additional $10,000 based on there being 2,100 pages of clerks and reporters transcripts, and an opening brief 56 pages long that raises five separate issues of alleged error . . . , many with subparts. He recites having 30 years experience, about 25 years of family law experience, and experience with numerous appeals in the Court of Appeal. He conservatively estimates needing an additional $10,000 in fees and costs to defend the appeal based on his billing rate of $290 an hour. That request, at the stated billing rate, amounts to about 35 hours of work, which the court could find to be reasonable on its face, even if the precise appellate issues were not spelled out.^[5]

The May fee request, prepared by Santos, was for $19,378. 31 in work done through May 9, 2005, and included detailed billing statements reflecting rates of $180 or, beginning in January 2005, $225 an hour. A declaration by Santos explained that the award of $15,000 in Pearlstein I was to the Whiting firm, for work leading to trial of that matter in March 2004, and that her current request was for fees and costs Julie incurred since Santos opened her own office. Santos declared that she had represented Julie for a 13-month period during which fees and costs totaled nearly $19,000, while during a similar 13-month period (bank records attached as support), Irwin had paid his own counsel $109,000, paying an hourly rate about twice hers. The trial court could reasonably find those fees and costs to be fair and reasonable.

Presented with nearly $30,000 in supported fees requests, the court awarded Julie $20,000. Substantial evidence supports the award, and no abuse of discretion is shown.

III. Payment directly to counsel

Finally, Irwins complaint that the order to pay $20,000 directly to counsel leaves him unsure who to pay does have merit. Julie had been representing herself at the trial level since early August 2005, and while we reasonably infer that the court meant for the award to compensate Lance Russell for recent work on the appeal and Dana Santos for her trial work over the preceding year, we simply cannot tell what portion is to go to each, and the court apparently did not want to leave the allocation to Julie. Irwins cited cases, where uncertain language had subjected petitioners to contempt proceedings (In re Berry (1968) 68 Cal.2d 137; Gottlieb v. Superior Court (1959) 168 Cal.App.2d 309), is vastly overblown given that no enforcement action was yet under way here. Still, the order does require clarification of the courts intentions.

It is troubling, however, that this problem could have been remedied without appeal by simply seeking clarification or objecting below to this aspect of the statement of decision. Indeed, one could argue waiver for Irwins failure to take those measures below. (Cf. In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928.) Irwin says in his briefing that he chose not to file yet another objection because it was evident from the statement of decision that the court had justifiably lost patience with the matter, but this was a simple matter that the court surely would have rectified.

We remand for clarification of whom to pay. In the interest of justice and to avoid an undeserved windfall to Irwin for appealing a matter that could have been raised below, however, we award ordinary appeal costs (Cal Rules of Court, rule 8.276(a)) to Julie.

Disposition

The judgment is affirmed, and the matter is remanded for clarification of payment as discussed in part III, above. Costs to respondent.

_________________________

Kline, P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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^[1]All unlabeled section references are to the Family Code, and for sake of clarity, we use the parties first names (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1).

^[2] Section 271: (a) Notwithstanding any other provision of this code, the court may base an award of attorneys 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 . . . pursuant to this section is in the nature of a sanction. In making an award . . . , the court shall take into consideration all evidence concerning the parties incomes, assets, and liabilities. The court shall not impose a sanction . . . that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award . . . , the party requesting an award of attorneys fees and costs is not required to demonstrate any financial need for the award.

(b) An award of attorneys fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard.

(c) . . . .

^[3] All unspecified further dates are in 2005.

^[4] Irwin raises some points, in his substantial evidence briefing, that we need not address on the merits. He objects, for example, that Julie filed multiple fee requests to torment him, that they violated local rules, that they were chronically made on shortened time, and that she made late filings without leave of court. Irwin forfeits these issues by not showing that he objected or sought rulings on these grounds below (In re Marriage of Whealon (1997) 53 Cal.App.4th 132, 144) and by presenting them here without discrete headings (Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290-291; Cal. Rules of Court, rule 8.204(a)(1)(B)-(C)).

^[5] Irwin quotes from the April 2005 letter from co-appellate counsel Wolf, although our reading of the evidentiary rulings indicates that the court granted Irwins objections to that letter as being unsworn and unathenticated hearsay. Whatever the case, Wolfs letter said much the same thing as Russells declaration.

Irwin also refers to various thingslike the filing date of Julies appellate brief, the performance of her counsel at oral argument in this court, and the filing of this courts opinion in Pearlstein Ithat were obviously or apparently not before Judge Libbey when he ruled. We must ignore those matters as irrelevant to our review (In re Zeth S. (2003) 31 Cal.4th 396, 405), and Irwins references to them are improper.