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)

APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. Alskne, Judge. Reversed with instructions.

Luce, Forward, Hamilton & Scripps and Charles A. Bird; Kolodny & Anteau and Ronald W. Anteau for Plaintiff and Appellant.
Stephen M. Hogan; Bruce M. Beals; Hurst & Hurst, Debra L. Hurst and Loren G. Freestone for Objector and Respondent.
We are called on in this case to decide an issue of first impression in this state; namely, when must a party falsely accused of child abuse or neglect allegations in a child custody proceeding move for sanctions under Family Code[1] section 3027.1 against the person or persons who made such allegations. Because section 3027.1 is silent on the issue, absent further direction from the Legislature we conclude equitable principles apply to determine the timing of a section 3027.1 sanctions motion. Based on such principles and the public policy of ensuring the best interest of children prevails in child custody cases, we further conclude a party moving for section 3027.1 sanctions must file his or her motion on or before the earliest of 60 days after the judgment or order exonerating him or her from such allegations is served, or 180 days from the entry of such judgment or order.
Plaintiff and appellant Robert L. dated Catherine D. briefly and they had one child together, a daughter.[2] During the course of child custody proceedings involving their daughter, Robert contends Catherine falsely accused him of child abuse or neglect. Almost two years after Catherine initially made such allegations against Robert, the court entered judgment granting Robert full legal custody of their daughter, and exonerating him of such allegations.
One day less than a year after the final order, Robert moved for sanctions against Catherine and one of her former attorneys, objector and respondent Jeffrey C. Fritz, on various grounds, including those noted under section 3027.1 for the false child abuse or neglect accusations Catherine made against Robert, which Fritz, as her attorney of record, repeated during the course of representing Catherine in the custody proceedings. Section 3027.1 gives a court discretion to impose monetary sanctions against a party, the party's attorney or a witness if the moving party establishes that the accusation of child abuse or neglect was made in a child custody proceeding, the accusation was false and the person or persons making it knew it was false when the accusation was made. Robert sought in excess of $750,000 in sanctions against Catherine and Fritz for the attorney fees and costs he incurred in the child custody proceedings, of which he claims at least $250,000 was to defend himself from the child abuse or neglect accusations.
Fritz alone moved to quash Robert's section 3027.1 motion, arguing it was untimely and deprived the court of subject matter jurisdiction. The court disagreed, but on its own treated the motion to quash as a motion to strike. The court applied the one-year limitations period under Code of Civil Procedure section 340, subdivision (c), applicable to defamation, analogizing a "claim for damages for false accusations" under section 3027.1 to slander, and struck any allegations of child abuse or neglect not made within a year of the filing of Robert's motion. The court dismissed the motion against Fritz, but not Catherine, after Robert acknowledged the motion could not succeed in light of the court's ruling.
On appeal, Robert argues the court erred when it borrowed and applied to section 3027.1 the one-year limitations period under Code of Civil Procedure section 340, subdivision (c). Robert instead claims the court should have applied a presumptive deadline under the equitable doctrine of laches based on the tort of malicious prosecution, which he claims is the most analogous tort to a section 3027.1 sanctions motion. Robert thus argues the deadline to file his motion was two years from the date of the judgment exonerating him.
As we explain, we conclude that neither a two-year limitations period based on malicious prosecution nor a one-year period based on defamation govern the timing of a motion for sanctions under section 3027.1. There being no statute and no rule setting a deadline to move for section 3027.1 sanctions, absent further direction from the Legislature we agree with Robert that equitable principles apply to determine the timing of a section 3027.1 sanctions motion.
As we further explain, in light of 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 to ensure consistency among related statutes in the Family Code, we conclude a party moving for section 3027.1 sanctions should file his or her motion on or before the earliest of 60 days after the judgment or order exonerating him or her from child abuse or neglect allegations is served, or 180 days from the entry of such judgment or order. These deadlines are drawn from California Rules of Court,[3] rules 3.1702, 8.104 and, if appropriate, rule 8.108, applicable to motions for recovery of attorney fees in civil proceedings, which rules also apply in family law proceedings. (See rule 5.21.) We further conclude that if a party files his or her section 3027.1 motion after the presumptive deadlines set forth in these rules, the burden shifts to the movant to show that his or her delay was excusable and that such delay did not result in undue prejudice to the opposing party or person who is the subject of the motion.
Here, Robert did not file his section 3027.1 sanctions motion until one day less than a year after the judgment exonerating him from Catherine's allegations of child abuse or neglect. However, because this is an issue of first impression in our state, we conclude it would be unfair to Robert to apply this procedural rule retroactively. We therefore reverse the order of the trial court dismissing Robert's section 3027.1 sanctions motion against Fritz and remand for the trial court to consider that motion, on its merits.
FACTUAL AND PROCEDURAL BACKGROUND
Robert and Catherine dated a few months in 1999, but never married. They had one child together, a daughter born in April 2000. By stipulation and order, the court awarded Robert sole physical custody, and Catherine and Robert joint legal custody, of their daughter.
A. Accusations of Child Abuse or Neglect by Catherine
In early September 2003, Catherine filed an order to show cause seeking modification of child custody, child visitation and child support, an order for psychological evaluation and attorney fees and costs (custody OSC). In support of her custody OSC, Catherine filed a declaration Robert contends falsely accused him of child abuse or neglect (hereinafter, the child abuse or neglect allegations).[4]
In her declaration, Catherine described Robert's parenting and their daughter's living conditions as follows:
"[S]ince the birth of our daughter, [Robert] has demonstrated that his parenting of our daughter is neglectful, un-nurturing and dangerous to our daughter's well being. [Robert's] parenting of our daughter has proven to be wholly adverse to the best interest of our daughter.
" . . . Since our daughter's birth, she has been raised in [Robert's] residence by a series of nannies too numerous to count. Our daughter has been neglected emotionally and deprived of the opportunity to be nurtured and raised by a parent or individual with whom she has a relationship . . . and is bonded to. [Our] [t]hree (3) year old [daughter] has virtually been raised by strangers.
" . . . Additionally, our daughter's living conditions in [Robert's] home are filthy and hazardous. [Robert] has numerous cats, dogs and birds totaling more than ten animals that live inside his residence and are permitted to urinate and defecate freely throughout the house. The smell of the inside of [Robert's] home is unbearable and the animal feces and waste is repulsive. Our daughter has been bitten by [Robert's] dog . . . and scratched by [his] cats. These living conditions coupled with [Robert's] psychosis is the reason why there have been numerous nannies and housekeepers, too multiple to count, who have worked for [Robert]."
Catherine's attorney of record when she filed her custody OSC was Fritz's late law partner, Robert Basie. When Basie passed away, Fritz substituted in as Catherine's attorney of record and represented her from September 11, 2003 (after she filed her declaration in support of the custody OSC) to August 10, 2004.
B. Robert is Awarded Sole Legal Custody of Their Daughter
Although not clear from the record, at some point after August 10, 2004, Catherine hired new counsel, William E. Blatchley, to represent her in the custody dispute and at trial, which ended in early May 2005. Judgment was entered on July 19, 2005, and Robert was awarded sole legal custody and primary physical custody of their daughter. The court found the evidence "strongly supports a finding that [Robert] is an effective, loving, and appropriate parent and caregiver for [their daughter]," and "did not support the imposition of any restriction on [Robert's] care or custody of [their daughter]." The parties agree it was this finding that exonerated Robert from the child abuse or neglect allegations.
Catherine subsequently opposed Robert's post-judgment motion to move away set for hearing in May 2006. In connection with her opposition, Catherine resubmitted her custody OSC declaration containing the child abuse or neglect allegations, made new accusations of sexual abuse against Robert that he contends were unfounded, and asserted Robert's psychologist failed to report such abuse after she brought it to the psychologist's attention. She also sought an award of attorney fees from Robert to enable her to hire legal counsel to represent her in the May 2006 hearing.
Fritz did not represent Catherine at the May 23, 2006, hearing on Robert's move-away motion. However, Fritz was present for that hearing, after appearing on an unrelated matter in the same courtroom.[5] On June 7, 2006, Fritz briefly substituted back into the case as counsel of record for Catherine. Robert, who at the time was representing himself, personally served Fritz with a copy of the judgment entered on July 19, 2005, "to ensure that Mr. Fritz was made aware of the matters that remained pending, and that [the trial court] had found [Robert] to be an 'excellent caregiver' of [their daughter]." The matters pending included, among other things, the finalization of the move away order and other financial issues the court had bifurcated from the custody proceeding.
C. Robert Attempts to Settle with Catherine before Filing His Sanctions Motion
In mid-June 2006, Robert contacted Fritz and Catherine in writing, stating he intended to file a motion for sanctions under sections 271 and 3027.1, as well as under Code of Civil Procedure section 2023, "if remaining matters were not settled."[6] Robert wanted to reach a "global settlement for peace of mind" and for "[their daughter's] sake." Shortly thereafter, Robert hired legal counsel who contacted Fritz in late June 2006 requesting he stipulate to bifurcate the issues of liability and a monetary award in the (instant) sanctions motion Robert intended to file.
Robert contends Fritz told Robert's legal counsel on July 14, 2006, that Catherine was coming to Fritz's office to sign the settlement agreement. Based on this representation, Robert waited to file his sanctions motion. However, when neither Robert nor his counsel heard from Fritz regarding settlement, Robert went forward and filed his motion on July 18, 2006. After doing so, Robert discovered Fritz had withdrawn as Catherine's attorney of record a day earlier, which Robert claims was done so Fritz could claim he was not Catherine's attorney of record for purposes of the section 3027.1 motion.
Although Robert had already filed his sanctions motion, he wrote Catherine on July 20 and again on July 27, 2006, seeking a global settlement with her. Robert represented to Catherine that if she were willing to enter into a global settlement with him, he would take his sanctions motion against her and Fritz off calendar. According to Robert, Catherine did not respond to his offer.
D. Robert's Motion for Sanctions
1. Grounds for Sanctions under Section 3027.1
Robert, in propria persona, filed his motion for sanctions against Catherine and Fritz. Specifically against Fritz, Robert alleged:
Fritz "knew from early on that these child abuse/neglect accusations [by Catherine] were false, but nevertheless continued to assert them as a basis for his client's meritless and unsuccessful attempts to obtain sole custody of [our daughter], child support and his excessive and unnecessary attorney fees. For example, I believe that Mr. Fritz knew the allegations of his client were false because:
"(a) [Fritz] was present at [Catherine's] October 13, 2003 deposition [when Catherine] . . . admitted I was a good parent and either recanted or discounted her accusations that I was an abusive/negligent parent. . . .
"(b) [Fritz] was served on October 14, 2003 with 14 third-party declarations, including [from our daughter's] school master and pediatrician, which refuted [Catherine's] accusations. . . .
"(c) [Fritz] took my deposition on October 15, 2003 and reviewed the third party declarations and the notes and cards written by [Catherine], as well as photos, which refuted the neglect/abuse accusations.
"(d) [Fritz] received the October 16, 2003 [family court services] report in which the senior mediator found no evidence or reason to change my custody of [our daughter]. . . .
"(e) [Fritz] had my October 14, 2003 Opposition Declaration and my October 30, 2003 Reply Declaration, which further refuted [Catherine's] child abuse and neglect accusations. . . .
"(f) [Fritz] subpoenaed, without my objection, and received [our daughter's] school and medical records, which showed no evidence of abuse or neglect. . . .
"(g) [Fritz] received psychological testing results in 2004 from two agencies for [our daughter], which showed no evidence of abuse or neglect. . . ."
Moreover, Robert's sanctions motion noted Fritz was present in the courtroom during Robert's May 2006 move away motion, although, as previously noted, Fritz was not then Catherine's attorney of record. Nonetheless, Robert argued Fritz substituted in and once again became Catherine's attorney of record shortly after that hearing, and while her counsel Fritz "took no steps to disavow or withdraw the filings (for the move away proceeding of which he became counsel of record for all purposes) of child abuse and neglect against me which were previously refuted in the Court's Statement of Decision, attached and incorporated into the July 19, 2005 judgment."
Robert sought sanctions against Catherine and Fritz "well in excess of $250,000," which included costs for attorneys, psychological testing, court transcripts, process servers and depositions, among other items, Robert incurred to defend himself against the child abuse or neglect accusations made by Catherine and asserted by Fritz in the custody dispute involving their daughter. Robert's request for sanctions under section 3027.1 was exclusive and independent of his request for sanctions under section 271.
2. Sanctions under Section 271
Robert also sought sanctions against Catherine and Fritz under section 271 because "at every turn of this drawn-out custody proceeding [Catherine] and Mr. Fritz refused to pursue settlement, refused to cooperate to keep litigation fees and costs down, obstructed relevant discovery, and served irrelevant discovery and baseless motions to compel, thus frustrating the policy to promote settlement or reasonably cooperate" as required under section 271. Robert claimed the wrongful actions of Catherine and Fritz caused his "legal fees and costs to skyrocket."
In particular, Robert in his motion alleged that Catherine and Fritz failed to promote settlement by refusing Robert's offers to mediate in mid-September 2003, just two weeks after Catherine filed the custody OSC, and again in March 2004. Robert also alleged Catherine and Fritz refused to discuss settlement and resolve discovery issues in August 2004.
Moreover, after Fritz substituted out of the case, Robert alleged Catherine and her then-new attorney Blatchley in February 2005 refused to stipulate to recommendations made by a psychologist, thus forcing Robert to prepare for and try the custody dispute at tremendous expense.[7] In October 2005 Robert's counsel contacted Catherine, who was then representing herself, to inquire about resolving the remaining post-trial issues. According to Robert, Catherine did not respond to this request.
In addition to these allegations, Robert's motion also included several pages of discussion regarding the repeated refusal of Catherine and Fritz to comply with lawful discovery, court orders regarding such discovery, and their own irrelevant, false and unlawful discovery they served on him.
Robert requested sanctions against Catherine and Fritz under section 271 of "not less than $500,000" based on the "substantial legal fees and costs" he incurred to promote settlement and reduce litigation-related costs, as well as to compel relevant discovery. Robert thus sought a combined minimum sanction against Catherine and Fritz of $750,000.
E. Fritz's Motion to Quash
Fritz alone moved to quash Robert's sanctions motion. He argued the court lacked jurisdiction over him because he was not Catherine's attorney of record when Robert filed his motion and was not a party to the action. He also argued Robert's motion was untimely under former rule 870.2 (current rule 3.1702), and section 271 applied only to a party and not a party's attorney.
Robert subsequently withdrew his request for section 271 sanctions against Fritz, but maintained Fritz was still liable for sanctions under section 3027.1. Robert argued an "action" under section 3027.1 was akin to a malicious prosecution claim in a civil matter, and thus contended a two-year statute of limitations applied. He further argued that even if the court applied a one-year limitations period based on an action for defamation, his claim against Fritz was timely.
As to Fritz's claim the action was untimely under former rule 870.2, Robert argued that a section 3027.1 sanctions action was "much more than an action to 'tally up' the attorneys fees incurred in the antecedent proceeding"; that if the court was inclined to apply former rule 870.2, the court should extend the time for filing such a motion as provided in part (d) of that rule; and that because the only case on point on this issue was unpublished (e.g., In re Marriage of Burch (June 27, 2003, G029221) 2003 WL 21481025) and held that the one-year statute of limitations for defamation should apply to a section 3027.1 sanctions motion, it would be unjust to conclude Robert's motion was untimely under former rule 870.2.
In his reply to Robert's opposition to his motion to quash, Fritz argued Catherine's September 2003 declaration did not accuse Robert of child abuse or neglect, but rather merely articulated her concerns about Robert's parenting of their daughter. Fritz also disputed that Robert had attempted to settle the custody dispute or streamline discovery, and argued Robert instead had opposed Catherine's own legitimate discovery requests and was generally uncooperative in resolving the parties' multiple disputes in the custody proceeding.


F. The Trial Court Applies a One-Year Statute of Limitations to Robert's
Section 3207.1 Sanctions Motion

The trial court issued an order on December 6, 2006, concluding it had subject matter jurisdiction over Fritz, based on the plain language of section 3027.1, which as discussed below expressly applies to "a witness, a party, or a party's attorney." (§ 3207.1, subd. (a), italics added.) The court rejected Fritz's argument that Robert's motion was time-barred under former rule 870.2, which provides that a notice of motion to claim statutory attorney fees must be filed within the time for filing a notice of appeal under former rules 2 and 3 (ordinarily, within 60 days after the court clerk mails the party filing the notice of appeal notice of entry of judgment or after a party's service of notice of entry of judgment).[8]
The court instead concluded that rule 870.2 was inapplicable to Robert's motion for sanctions under section 3027.1 because: (1) the primary purpose of section 3027.1 is to award sanctions, not attorney fees; (2) a finding of falsity and an award under section 3027.1 need not occur during the pendency of a child custody proceeding, which, in any event, may already have been concluded by the time a party files his or her motion; and (3) section 3027.1 contains an implicit limitation of actions period independent of rule 870.2.
The court reasoned the one-year limitations period applicable to defamation implicitly governed 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 court reasoned Robert's "claim for damages under section 3027.1 and for attorney's fees incurred in recovering those damages" was subject to the one-year limitations period set forth in Code of Civil Procedure section 340, subdivision (c).
The court on its own treated Fritz's motion to quash as a motion to strike and struck "any allegations of false accusations of child abuse or neglect not made within a year of the filing" of Robert's July 18, 2006 order to show cause. The court also ruled that to the extent Robert's sanctions motion was premised on Catherine's September 2003 declaration in the custody OSC, it was time-barred, even if the allegations in that declaration were referred to in later hearings. The court set an evidentiary hearing for mid-January 2007 "to determine whether there is a factual basis for [Robert's] claim to money sanctions under section 3027.1. If [Robert] abandons the claim in light of the above ruling, he shall promptly notify the court."
G. Robert Seeks Reconsideration and Clarification of the Court's
December 6, 2006 Order

Robert filed a motion for reconsideration and clarification on December 21, 2006, raising the tolling of the statute of limitations and arguing it was inequitable of the court to apply the one-year limitations period under Code of Civil Procedure section 304, subdivision (c), in light of the lack of legal authority on this issue.
The court on June 18, 2007, denied Robert's reconsideration motion, ruling the tolling issue did not constitute "new facts, new circumstances or new law" for purposes of Code of Civil Procedure section 1008, subdivision (a). The court also concluded Robert's request to "clarify" its December 6, 2006, order was untimely.
In early July 2007, Robert filed a motion asking the court to issue a final order denying his section 3027.1 sanctions motion only as to Fritz. Robert brought this motion because it was "impossible to proceed with the motion for sanctions in light of the court's ruling that Family Code section 3027.1 has an absolute statute of limitations of one year from when the offending accusations are made and the refiling or reassertion of such accusations is not actionable." Robert noted he had "insufficient evidence to maintain an action that Fritz participated in making any false accusations that could be the subject of sanctions under Family Code section 3027.1 in the one year before the date on which [he] filed the [order to show cause] for sanctions."
On August 14, 2007, the court accepted a stipulation by Robert and Fritz dismissing Robert's section 3027.1 sanctions motion against Fritz only. Robert argued the dismissal was necessary for him to seek review of the court's December 6, 2006 order.[9]
DISCUSSION
A. Standard of Review
We review the trial court's interpretation and application of section 3027.1 under a de novo standard of review. (See People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432; In re Marriage of Dupre (2005) 127 Cal.App.4th 1517, 1525 (Dupre).) Determining the timing of a section 3027.1 motion is also subject to our independent review. (See Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1102-1103.)
TO BE CONTINUED AS PART II….



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