ROBERT v. CATHERINE








Filed 3/11/09






CERTIFIED FOR PUBLICATION



COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ROBERT J., Plaintiff and Appellant, v. CATHERINE D., Defendant; JEFFREY C. FRITZ, Objector and Respondent.

D051552 (Super. Ct. No. D458561)

STORY CONTINUE FROM PART I….


B. Governing Law
Section 3027.1 is within Part 2 of Division 8 of the Family Code, which governs custody of a minor. Section 3020, subdivision (a), sets forth the Legislature's findings and declarations in connection with Part 2, and provides in part:
"The Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child."
In making a determination of the "best interest of the child," a court must consider, among other factors, the "health, safety, and welfare of the child" (§ 3011, subd. (a)), and "[a]ny history of abuse by one parent or any other person seeking custody" against "[a]ny child" and/or "[t]he other parent." (§ 3011, subd. (b)(1), (2).) "As a prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence." (§ 3011, subd. (b)(3).)
Thus, in the context of a child custody proceeding when allegations of child abuse or neglect arise, before making a custody determination the court necessarily must determine the veracity of such allegations to ensure the court is acting in the "best interest" of the child. (§ 3011, subd. (b)(1), (2), (3).)
Section 3027.1, subdivision (a), allows a court to impose reasonable money sanctions, and any attorney fees incurred in recovering the sanctions, against a person who knowingly makes a false accusation of child abuse or neglect in a child custody proceeding. It provides:
"If a court determines, based on the investigation described in Section 3027 or other evidence presented to it, that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time the accusation was made, the court may impose reasonable money sanctions, not to exceed all costs incurred by the party accused as a direct result of defending the accusation, and reasonable attorney's fees incurred in recovering the sanctions, against the person making the accusation. For the purposes of this section, 'person' includes a witness, a party, or a party's attorney."^[1] (Italics added.)
Subdivision (b) of section 3027.1 sets forth the notice required for a hearing on a section 3027.1 sanctions motion:
"On motion by any person requesting sanctions under this section, the court shall issue its order to show cause why the requested sanctions should not be imposed. The order to show cause shall be served on the person against whom the sanctions are sought and a hearing thereon shall be scheduled by the court to be conducted at least 15 days after the order is served."
Finally, subdivision (c) of section 3027.1 states the "remedy provided by this section is in addition to any other remedy provided by law."
C. Rules of Construction
In construing section 3027.1, "our primary task is to determine the Legislature's intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent." (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826; Gooch v. Hendrix (1993) 5 Cal.4th 266, 282.)
"However, if the statutory language permits more than one reasonable interpretation, courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute. [Citation.] In the end, we ' "must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." ' " (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1003; see also Harris v. Capital Grown Investors XIV (1991) 52 Cal.3d 1142, 1165-1166.)
Here, section 3027.1 is silent on the timing of a motion for sanctions. Subdivision (a) of section 3027.1 provides the accusation of child abuse or neglect, to be actionable, must be "made during a child custody proceeding." (§ 3027.1, subd. (a).) Although the accusation of child abuse or neglect must be made during a child custody proceeding, there is no requirement in section 3027.1 that a motion for sanctions must be filed during that proceeding. (See Dupre, supra, 127 Cal.App.4th at p. 1527.)
Subdivision (b) of section 3027.1 also does not resolve our issue, inasmuch as it requires that a person subject to a sanctions motion be given at least 15 days' notice before the hearing. Subdivision (b) of section 3027.1 does not, however, address when the sanctions motion must be filed. (§ 3027.1, subd. (b).)
Robert argues the trial court erred when it applied the one-year limitations period for defamation under section 340, subdivision (c), and instead claims the court should have applied a presumptive deadline under equitable principles drawn from the tort of malicious prosecution, which he claims is the most analogous tort to a section 3027.1 motion. Robert thus argues the deadline to file his sanctions motion should have been two years from the judgment exonerating him of the child abuse or neglect allegations.
Robert also argues the trial court properly rejected Fritz's contention that former rule 870.2 applied to a section 3027.1 sanctions motion because former rule 870.2 was limited to claims for attorney fees. According to Robert, section 3027.1 is not so limited, inasmuch as it expressly allows recovery of "all expenses" and not just attorney fees. He further argues that borrowing the time limitations set forth in former rule 870.2 and applying them to section 3027.1 creates a "trap for the unwary," inasmuch as many litigants in family court appear in propria persona and have expenses recoverable under section 3027.1 other than attorney fees.
Because the words of section 3027.1 do not resolve the issue of the timing of a motion for sanctions under the statute, we look to extrinsic aids, including legislative history, for guidance. (Flannery v. Prentice (2001) 26 Cal.4th 572, 579; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)
D. Legislative History of Section 3027.1^[2]
The legislative history shows section 3027.1 was originally enacted in 1990 as Civil Code section 4611 in response to the increasing number of child custody cases where an accusation of child abuse and neglect was made "in an effort by one party to gain custody of the children." (Office of Criminal Justice Planning on Assem. Bill No. 3546 as amended May 16, 1990 (1989-1990 Reg. Sess.) p. 2.^[3]) Former Civil Code section 4611 gave a court the discretion to impose a sanction of no more than $1,000, plus reasonable attorney fees to recover that sanction, against any person who made an accusation of child abuse or neglect in a child custody proceeding if the person knew it to be false at the time it was made.
This legislative history also shows the Legislature looked to several other statutes that allowed a court to award sanctions for procedural misconduct in family law proceedings for guidance in enacting former Civil Code section 4611. (See Senate Rules Com. on Assem. Bill No. 3546 as amended May 16, 1990 (1989-1990 Reg. Sess.) p. 1; see also Assem. Com. on Judiciary, Rep. on Assem. Bill No. 3546 as amended May 16, 1990 (1989-1990 Reg. Sess.) p. 2.) In addition to sanctions for failure to comply with the Civil Discovery Act (Code Civ. Proc., § 2023.010 et seq., formerly Code Civ. Proc., § 2023), and for the filing of bad faith actions or pursuing frivolous or delaying tactics (Code Civ. Proc., § 128.5), it shows sanctions were authorized in family law proceedings "based on the extent to which the conduct of each party and the attorney frustrates the policy of law to promote settlement of litigation," as provided in section 271.^[4] (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 3546 as amended May 16, 1990 (1989-1990 Reg. Sess.) p. 2.)
Following its enactment, former Civil Code section 4611 became part of the Family Code and was renumbered to former section 3027 without substantive change. (1994 Family Code, 23 Cal. L. Revision Comm'n Reports 1, 9, fn. 1.) In 1994 the Legislature amended former section 3027 to delete the $1,000 cap on sanctions and substituted it with a new one "not to exceed all costs incurred by the party accused as a direct result of defending the accusation." (See Assem. Bill No. 2845 (1993-1994 Reg. Sess.) § 1.)
The legislative history of the 1994 amendment demonstrates the Legislature considered the $1,000 cap in former section 3027 "unreasonable given the 'enormous' cost of defending false charges of abuse or neglect. Instead of capping such sanctions at a specified amount as the current law does, this bill would authorize the award of all costs incurred to defend false accusations, together with reasonable attorney's fees for recovering those sanctions." (Sen. Rule Com., Office of Sen. Floor Analysis of Senate Bill No. 1841 (1993-1994 Reg. Sess.) August 24, 1994.^[5])
By removing the $1,000 cap, the Legislature also sought to discourage further "the practice of falsely accusing another of sexual or physical abuse in custody deliberations." (Sen. Rules Com., Office of Sen. Floor Analysis of Senate Bill No. 1841 (1993-1994 Reg. Sess.) May 11, 1994; see also Sen. Rules Com., Office of Sen. Floor Analysis of Senate Bill No. 1841 (1993-1994 Reg. Sess.) August 24, 1994 ["[I]t is becoming common in child custody and divorce proceedings for one party to falsely accuse the other of child abuse"; "The author [of Assembly Bill No. 1841] hopes to curtail such allegations by providing for recovery of costs and increasing the applicable sanction"].)
In 2000 the Legislature amended section 3027 and renumbered it as (current) section 3027.1. (Stats. 2000, ch. 926, § 2.) It also added a new Family Code section, section 3027, which, as already noted, applies to accusations of child sexual abuse. (Stats. 2000, ch. 926, § 3.)
The legislative history does not answer the question of the timing of a motion for monetary sanctions under section 3027.1. It does highlight, however, the public policy underlying the enactment of this statute of discouraging a person from deliberately making false accusations of child abuse or neglect during a child custody proceeding in order to gain custody of a minor child, and of compensating a party wrongly accused of abuse or neglect up to the statutory maximum.
The legislative history also shows the Legislature looked to other sanctions statutes applicable in family law proceedings, including (what is now) section 271, for guidance during its enactment of former Civil Code section 4611, the predecessor of section 3027.1. In construing a statute, we also examine the context in which the statute appears, " 'adopting the construction that best harmonizes the statute internally and with related statutes.' " (Pacific Sunwear of California, Inc. v. Olaes Enterprises, Inc. (2008) 167 Cal.App.4th 466, 474.) We next turn to an analysis of section 271, and the timing in which to seek sanctions under that statute.
E. Sanctions under Family Code Section 271
As noted, Robert also moved under section 271 for monetary sanctions in excess of $500,000 against Catherine and Fritz for the "substantial legal fees and costs" he incurred, which request was separate and independent of his sanctions request under section 3027.1. Robert subsequently dismissed Fritz only from his request for sanctions under section 271.^[6]
Section 271 provides:
"(a) 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. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award.
"(b) An award of attorney's 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) An award of attorney's fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party's share of the community property." (§ 271, italics added.)
Section 271 authorizes a fees and costs award as a penalty for obstreperous conduct. (In re Marriage of Norton (1988) 206 Cal.App.3d 53, 57-58.) However, "[w]hile fees and costs imposed under [section 271] are in the nature of a sanction, the requisite delicts are limited. The statute is aimed at conduct that further or frustrates settlement of family law litigation and at reduction of litigation cost." (In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 6 (Freeman).) A trial court has broad discretion to award sanctions under section 271, subject to the "unreasonable financial burden" cap in subdivision (a) of that statute. (§ 271, subd. (a); In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478 (Feldman) [the imposition of sanctions under section 271 will be reversed for abuse of discretion "only if, considering all of the evidence viewed most favorably in support of its order, no judge could reasonably make the order"].)
Section 271 "contemplates that sanctions be assessed at the end of the lawsuit, 'when the extent and severity of the party's bad conduct can be judged.' " (Freeman, supra, 132 Cal.App.4th at p. 6, quoting In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970.) In Freeman, the court concluded a party, seeking sanctions in the form of attorney fees and costs under section 271 against another for the latter's frivolous appeal, was required to file an application within the time limitation set forth in former rule 870.2, subdivision (c), or within 40 days after the clerk sent notice of issuance of the remittitur. (Freeman, supra, 132 Cal.App.4th at p. 9.)
Subsequently, this court concluded in Feldman, supra, 153 Cal.App.4th at pages 1494-1495, that a court may award sanctions under section 271 before the end of a lawsuit, observing the "text of section 271 contains no requirement that the trial court impose the sanction at the end of the lawsuit. Indeed, the only procedural requirement in the statute is that an award of attorney fees and costs as a sanction may be imposed 'only after notice to the party . . . and [an] opportunity for that party to be heard.' " (Id. at p. 1495.) We further concluded, "[a]s a matter of logic, to promote cooperation a trial court must be able to apply sanctions during the course of the litigation when the uncooperative conduct arises in order to encourage better behavior as the litigation progresses." (Ibid.)
F. Laches
Robert argues that because there is no statute or rule setting a deadline when a party must file a section 3027.1 motion for monetary sanctions, the deadline is prescribed by equitable principles based on laches. We agree. (See Fountain Valley Regional Hospital & Medical Center v. Bonta (1999) 75 Cal.App.4th 316, 324.)
Laches is " 'designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.' " (Wood v. Elling Corp. (1977) 20 Cal.3d 353, 362; see also Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1156 [laches "is an equitable time limitation on a party's right to bring suit, resting on the maxim that 'equity aids the vigilant, not those who sleep on their rights.' [Citations.]"].)
"These policies also guard against other injuries caused by a change of position during a delay. While a statute of limitations bars proceedings without proof of prejudice, laches 'requires proof of delay which results in prejudice or change of position.' " (Lam v. Bureau of Secruity & Investigative Services (1995) 34 Cal.App.4th 29, 36 (Lam), quoting Brown v. State Personnel Bd. (1985) 166 Cal.App.3d 1151, 1161 (Brown).) "Delay alone ordinarily does not constitute laches, as lapse of time is separately embodied in statutes of limitation." (Ibid.) "What makes the delay unreasonable in the case of laches is that it results in prejudice." (Ibid.)
"There is one circumstance in which unreasonable delay may be found as a matter of law. 'In cases in which no statute of limitations directly applies but there is a statute of limitations governing an analogous action at law, the period may be borrowed as a measure of the outer limit or reasonable delay in determining laches. [Citations.] Whether or not such a borrowing should occur depends upon the strength of the analogy.' " (Lam, supra, 34 Cal.App.4th at p. 37, quoting Brown, supra, 166 Cal.App.3d at pp. 1159-1160.) "The effect of the violation of the analogous statute of limitations is to shift the burden of proof to the plaintiff to establish that the delay was excusable and the defendant was not prejudiced thereby." (Ibid.) If, however, the two actions are not analogous, the burden does not shift and it remains the responsibility of the party asserting laches to show that the delay was unreasonable and caused the party prejudice. (Id. at pp. 38-39.)
In Brown the plaintiff argued his dismissal in 1981 based on incidents of sexual harassment in 1975 was barred by laches, analogizing to a provision in the Government Code that mandated disciplinary action be brought against a civil service employee within three years after the reason for the discipline arose. (Brown, supra, 166 Cal.App.3d at p. 1157.) The court agreed, observing that while the Government Code provision did not govern that case "as a statute of limitations," it did reflect a "legislative policy judgment that a delay of three years is inherently unreasonable in the prosecution of a disciplinary action against a broad range of public employees," including employees "whose positions mirror" those of the plaintiff. (Id. at p. 1160.) The Brown court thus "borrowed" the Government Code provision and concluded it provided an "outer limit of delay which is reasonable in the prosecution of a disciplinary action against an employee of the state university system." (Ibid.)
G. Analysis
We conclude a party seeking sanctions under section 3027.1 should file his or her motion within the time provided in rule 3.1702.^[7] Under that rule, the motion for sanctions should be filed within the time provided in rule 8.104 or, if applicable, rule 8.108, or the earliest of 60 days after the superior court clerk mails, or a party serves, notice of judgment or a file-stamped copy of the judgment (or an order) exonerating the party of child abuse or neglect allegations, or 180 days after entry of judgment (or the issuance of an order) where the party is exonerated from such allegations.
We further conclude that if a party files his or her request for section 3027.1 sanctions after the presumptive deadlines set forth in rules 3.1702, 8.104 and, if applicable, rule 8.108, the burden shifts to the movant to show that his or delay was excused and that such delay did not result in undue prejudice to the opposing party or person who is the subject of the sanctions motion.
Our conclusion is based in part on the Legislature's findings and declaration that the public policy of ensuring the health, safety and welfare of children shall be the "primary concern" of courts in determining the best interest of children in child custody proceedings, and that an allegation of child abuse asserted by one parent against another has a significant impact on the court's determination of custody. (See § 3020.)
In addition, our conclusion promotes consistency within the Family Code, inasmuch as the court in Freeman held a party seeking sanctions under section 271 against another for the latter's frivolous appeal was required to file an application within the time limitation set forth in former rule 870.2, subdivision (c), or within 40 days after the clerk sent notice of issuance of the remittitur. (Freeman, supra, 132 Cal.App.4th at p. 9.)
A section 3027.1 sanctions motion filed within the time period prescribed by rules 3.1702 and 8.104 is also more likely to be heard by the same judge who presided over the child custody proceeding. As such, this also will promote consistency and fairness in the courts' treatment of sanctions awards under section 3027.1.
Robert argues former rule 870.2 is inapplicable "because section 3027.1 expressly provides for recovery of 'all expenses,' not just attorney fees." Because former rule 870.2 (current rule 3.1702) governs the timing of a claim for attorney fees only, Robert argues these rules do "not apply to a statute that provides for recovery of attorney fees and additional expenses." Robert also distinguishes section 271 from section 3027.1 on this basis, arguing section 271 provides for an award of "attorney fees and costs," whereas section 3027.1 "provides for 'sanctions' capped by 'all costs incurred by the party accused as a direct result of defending the accusation.' "
Robert's argument ignores the plain language in section 271, subdivision (a), that "[a]n award of attorney's fees and costs pursuant to this section is in the nature of a sanction." (Italics added; see also § 271, subd. (b) ["An award of attorney's 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"]; and subd. (c) ["An award of attorney's fees and costs as a sanction pursuant to this section is payable only from the property or the income of the party against whom the sanction is imposed . . . ."] italics added.)
In addition, the legislative history of section 3027.1 shows the Legislature looked to section 271 (then-Civil Code section 4370.6) when authorizing a court to award sanctions based on procedural misconduct. (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 3546 as amended May 16, 1990 (1989-1990 Reg. Sess.) p. 2.)
We thus reject Robert's contention that section 271 is sufficiently distinguishable from section 3027.1 such that the former statute is governed by the time limitation in rule 3.1702 (or former rule 870.2) (Freeman, supra, 132 Cal.App.4th at p. 9), whereas the latter statute should be governed by a different rule, which according to Robert is a two-year limitations period based on equitable principles derived from the tort of malicious prosecution. In fact, sections 271 and 3027.1 have more in common than differences, as both statutes provide for an award of sanctions; both give a court broad discretion to make such an award; both address procedural misconduct in family law proceedings; and both allow a party to recover attorney fees and costs as sanctions.
Robert's own sanctions motion supports this analysis. It would make little sense to require a party to file a motion for sanctions under section 271 within the time limitation prescribed by rule 3.1702, for example, while at the same time giving that party two years from the date the party is exonerated from child abuse or neglect allegations to seek sanctions under section 30271. This is particularly true when both statutes allow for the recovery of attorney fees and costs in family law proceedings, which Robert sought in his motion.^[8]
We also reject Robert's argument that a two-year limitations period should apply based on the tort of malicious prosecution. Allowing a party in a child custody dispute to wait two years to seek sanctions against a person under section 3027.1 is decidedly not in the best interest of a child (§ 3020), as it discourages, as opposed to encourages, finality in child custody litigation, in contravention of public policy. (See e.g., Lehman v. Lycoming County Children's Services (1982) 458 U.S. 502, 513 [" '[t]he State's interest in finality is unusually strong in child custody disputes' "]; Adoption of Alexander S. (1988) 44 Cal.3d 857, 868 [state's interest in finality in child-custody disputes is "unusually strong" in view of the importance of a stable child-parent relationship]; In re Clarissa H. (2003) 105 Cal.App.4th 120, 125 ["the public policy of expediency and finality is unusually strong in custody . . . matters, as uncertainty is detrimental to a child's development and well-being"].)
In addition, we disagree with Robert that section 3027.1 "redresses the same injury that is at the core of a civil action for malicious prosecution." Section 3027.1 does not create a right to "damages," as Robert argues. Instead, this statute provides a limited exception to the absolute litigation privilege in Civil Code section 47, subdivision (b)(2), which is further limited by the family law court's discretion to sanction a person for making knowingly false accusations of child abuse or neglect in a child custody proceeding.
By analogizing the discretionary authority of a court to award sanctions under section 3027.1 to the right to recover damages in the tort of malicious prosecution, Robert opens the door to the potential abuse of this statute by parties in child custody and other family law proceedings that courts closed when they barred malicious prosecution in such proceedings. (See Begier v. Strom (1996) 46 Cal.App.4th 877, 885-888 [ex-husband cannot maintain malicious prosecution against ex-wife based on her filing of false police report accusing ex-husband of molesting their daughter; Bidna v. Rosen (1993) 19 Cal.App.4th 27, 30 (Bidna) [husband may not maintain action for malicious prosecution against wife for her filing of multiple child custody proceedings, inasmuch as the "remedy for egregious conduct in family law court is for the family law bench to nip it in the bud with appropriate sanctions, not to expand tort liability for malicious prosecution to the family law bar"].) Courts adopted a "bright line rule" barring malicious prosecution claims in family law cases because such "cases have a unique propensity for bitterness" (Bidna, supra, 19 Cal.App.4th at p. 35) and because family law courts have the "ability to swiftly discourage litigious nonsense at its source" by imposing sanctions within the family law proceeding. (Ibid., citing § 271 among other statutes.)
We thus reject Robert's argument the Legislature intended to leave litigants, witnesses and attorneys exposed to potential sanctions under section 3027.1 for two full years after a party has been exonerated from child abuse or neglect allegations.
We also reject applying the one-year limitations period in Code of Civil Procedure section 340, subdivision (c), to a request for sanctions under section 3027.1. The trial court here reasoned the one-year statute of limitations for defamation implicitly governs a section 3027.1 motion because section 3027.1 "permits a party to bring a claim for damages for false accusations and to do so within the context of a proceeding under the Family Code." Because a false accusation of child abuse is a form of slander, the trial court reasoned Robert's "claim for damages under Section 3027.1 and for attorney's fees incurred in recovering those damages" was subject to Code of Civil Procedure section 340, subdivision (c).
"[A] cause of action for defamation accrues at the time the defamatory statement is 'published' (using term 'published' in its technical sense)." (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1247.) "[I]n defamation actions the general rule is that publication occurs when the defendant communicates the defamatory statement to a person other than the person being defamed." (Ibid.)
In the case before us, Robert's claim he was wrongly accused of child abuse or neglect of his daughter dates back to Catherine's September 4, 2003, declaration in support of her custody OSC. If we applied defamation principles to section 3027.1 as did the trial court, Robert would have been required to file his request for sanctions under 3027.1 within one year, or by September 4, 2004, at the latest.
The record shows, however, that the court-ordered psychological evaluation of the parties was not completed until January 2005. The record further shows the trial court extensively relied on the findings in this report and the testimony of the doctor who prepared it in determining the best interest of the parties' daughter, and in granting Robert sole legal custody of her at the conclusion of the child custody trial held in May 2005.
We decline to adopt a rule that would have required Robert to seek sanctions under section 3027.1 before the trial court's determination of custody and visitation based on the best interest of their daughter, which would have interrupted and thus prolonged the child custody proceeding. Such a rule would make little sense in light of the Legislature's requirement that a court consider, among other factors, "[a]ny history of abuse by one parent or any other person seeking custody" against "[a]ny child" or "[t]he other parent" in determining the best interest of the child. (§ 3011, subd. (b)(1), (2).)
We also reject Robert's contention that by borrowing rules 3.1702 and 8.104 and applying them to a section 3027.1 request for sanctions, we are creating a "trap for the unwary" because many litigants in family court appear in propria persona and will not be seeking attorney fees, but instead only costs for the procedural misconduct circumscribed by that statute.
However, the record here does not support this contention, and in fact supports the opposite view, inasmuch as Robert filed his sanctions motion in propria persona while seeking costs and attorney fees in excess of $750,000. His contention also ignores the edict that pro. per. litigants are held to the same standard as parties represented by trained legal counsel. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
In addition, by applying the same standards governing a motion for attorney fees and costs under section 271 to the timing of a motion under section 3027.1, we are making it less, not more, confusing for parties, their attorneys and family law courts by requiring parties' post-trial motions to be brought within the same period, and increasing the likelihood the same trial judge that presided over the child custody proceeding will also decide such motions.
H. Remand
As noted, we conclude Robert was required to file his section 3027.1 sanctions motion within the time prescribed by former rule 870.2, or the earliest of 60 days from the date the superior court clerk mailed, or a party served, the notice of entry of judgment exonerating him from allegations of child abuse or neglect against his daughter. However, because this is an issue of first impression in our state, we further conclude it would be unfair to apply this procedural rule retroactively to Robert. (See, e.g., Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 741-742.)
We therefore reverse the trial court's order dismissing Robert's section 3027.1 sanctions motion against Fritz, and remand for the trial court to consider that motion on its merits.


DISPOSITION
The order of the trial court dismissing Robert's motion for section 3027.1 sanctions is reversed, and the case remanded for the trial court to hear that motion on its merits. Each side shall bear its own costs on appeal.
CERTIFIED FOR PUBLICATION



BENKE, Acting P. J.

WE CONCUR:



HUFFMAN, J.



NARES, J.




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