Marriage of D.H. and B.G. CA4/1

Filed 10/27/26 Marriage of D.H. and B.G. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA In re the Marriage of D.H. and B.G. D.H., D086416 Appellant, (Super. Ct. No. D474390) v. B.G., Respondent. APPEAL from an order of the Superior Court of San Diego County, Paula S. Rosenstein, Judge. Affirmed. Antonyan Miranda, Anthony J. Boucek, and Timothy Miranda for Appellant. Complex Appellate Litigation Group, Claudia Ribet, Charles M. Kagay, and Robert A. Roth for Respondent. D.H. (Mother) appeals from an order awarding her $75,359 in sanctions against B.G. (Father), her former spouse, under Family Code section 271. Mother contends that (1) the family court erred in denying her separate 1 motion for sanctions against Father’s attorney, Andrew Botros, under Code of Civil Procedure sections 128.5 and 128.7 (CCP sanctions), and (2) the amount of sanctions the court did award against Father was insufficient. We conclude we lack jurisdiction to review the court’s order denying Mother’s motion for CCP sanctions against Botros because her notice of appeal only identified the subsequent order awarding Family Code sanctions against Father as the sole basis for her appeal. We further conclude Mother has not shown that the court abused its discretion by awarding $75,359 in sanctions against Father. We therefore affirm. FACTUAL AND PROCEDURAL BACKGROUND In a prior published opinion, we reversed the family court’s order granting Father’s request for a refund of child support payments after the court found that their youngest child, A.G., was no longer a full-time high school student as of July 2020. (In re Marriage of D.H. & B.G. (2023) 87 Cal.App.5th 586, 589, 606 (Marriage of D.H.).) That opinion describes the parties’ factual allegations in detail, and here we only set forth the facts pertinent to the narrow issues arising in this appeal. A. Underlying Litigation The parties have been litigating their marital dissolution since 2002. A.G., who primarily lived with Mother during the proceedings, turned 18 in March 2020. In 2021, Father filed requests for orders (RFOs) seeking a determination that his child support obligations had terminated, a return of overpaid support, and sanctions under Family Code section 271. Family Code section 3901, subdivision (a)(1), provides that child support continues for an unmarried child who has turned 18 years old, is a full-time high school student, and is not self-supporting, until he or she finishes 12th grade or turns 19 years old, whichever happens first. Citing an e-mail message and 2 subpoena responses, Father asserted that after June 2020, A.G. was not enrolled as a full-time high school student and that his child support obligation ended at that time. Father’s attorney, Andrew Botros, exchanged e-mails regarding the RFOs with Mother’s counsel in the months that followed. In late September 2021, a paralegal in Botros’s firm forwarded Botros an e-mail from an executive assistant at Grossmont Union High School District (the District), where A.G. was enrolled in an adult education program. The e-mail attached A.G.’s attendance records and stated that for the 2020-2021 academic year, A.G. “was enrolled in what Grossmont Adult Education would consider a full- time high school diploma program.” In October 2021, Father continued to assert in his own declaration and through Botros’s court filings that A.G. was not enrolled as a full-time high school student after June 2020. The District’s September 2021 e-mail was neither mentioned in those filings, nor produced to Mother’s attorney or the court. After hearing the parties’ arguments, the family court issued a written order finding A.G. ceased to be a full-time high school student after June 2020 because according to Father’s evidence, “[h]er attendance at Grossmont Adult School did not meet the school’s definition of full time,” and Mother did not offer evidence to contradict that conclusion. After Mother appealed, in January 2023, we issued our opinion in Marriage of D.H and remanded the matter back to the family court with directions to conduct further proceedings using the Education Code’s definition of “full-time” to analyze whether A.G. should be considered a “full- time” high school student under Family Code section 3901. (See Marriage of D.H., supra, 87 Cal.App.5th at pp. 599–600.) In August 2023, Mother received a copy of the District’s September 2021 e-mail for the first time 3 by subpoena in advance of the deposition of the District’s designated representative with knowledge of A.G.’s student records. The family court subsequently found that A.G. was a full-time high school student during the relevant time period for purposes of determining child support under Family Code section 3901. B. Motions for Sanctions Mother filed two separate motions in January 2024: one seeking sanctions against Botros under Code of Civil Procedure sections 128.5 and 128.7 and one seeking sanctions against Father under Family Code section 271.1 In the latter motion, Mother asserted that she was “not seeking additional sanctions, she is only seeking to apportion sanctions between the two responsible parties according to the Court’s discretion.” In both motions, Mother asserted that she had incurred fees and costs totaling $89,947.09 in the trial proceedings and her first appeal up until the filing of the sanctions motions in November 2023. In her CCP sanctions motion, Mother argued that Botros knew that the reply brief he signed about a week after receiving the District’s September 2021 e-mail contained misrepresentations about A.G.’s full-time status. Her attorney estimated that Mother had incurred about $90,000 in attorney fees and costs between the date of the District’s e-mail and the date of the motion for sanctions. In her Family Code section 271 motion, Mother argued that Father should also be held responsible for Botros’s conduct and that the court should exercise its discretion to allocate sanctions between Father and Botros. 1 Father also filed a motion for sanctions against Mother, which is not at issue on appeal. 4  At a hearing on January 23, 2025, the family court ruled from the bench and denied Mother’s motion for CCP sanctions against Botros on procedural and substantive grounds. The court explained that, “based upon the argument and pleadings that have been submitted and . . . the exhibits to the extent they’ve been referenced in this hearing,” the court did “not find that sanctions under these two [CCP] sections is appropriate.” The court gave two separate reasons for its ruling: (1) it found no intent to deceive on Botros’s part; and (2) it ruled that a request for sanctions under these two CCP sections cannot be combined into a single motion because each of these statutes provides that “[a] motion for sanctions under this section shall be made separately from other motions or requests.” (Code Civ. Proc., §§ 128.5, subd. (f)(1)(A), 128.7, subd. (c)(1).) Towards the end of the hearing, the court confirmed it was finding that Botros’s decision not to disclose the District’s e-mail was not “totally and completely without merit” under Code of Civil Procedure section 128.5 and also did not constitute a violation of section 128.7, and that the CCP requests should have been filed separately. In ruling from the bench on this motion, the court did not direct the preparation of a formal written order. The minute order for the January 23, 2025 hearing reflects the court’s ruling that Mother’s motion for CCP sanctions against Botros was denied because “the evidence does not meet the mens rea” and “[t]he Court does not believe the motions can be combined.” As to Mother’s separate Family Code section 271 motion for sanctions against Father, however, the court found that the failure to disclose the District’s e-mail constituted a material misrepresentation or omission. The court explained that the omission “may have led” the court “down the wrong path” when it first decided the issue, and that this court’s own analysis in Marriage of D.H. was impeded by the failure. The court stated that it would 5 award sanctions against Father in an amount “less than $90,000,” but would determine the exact amount of fees at a later date after receiving billing records from Mother’s counsel in a format that was easier to review. Although the court was initially under the impression that Mother was only seeking approximately $90,000 in sanctions based on her moving papers, Mother’s attorneys represented to the court that the amount of attorney fees and costs that had accrued through the date of the hearing was approximately $170,000. Nearly two months later, on March 13, 2025, the family court filed written “Findings and Order Re: § 271 Sanctions.” The court first noted that after hearing each party’s arguments and evidence, it had “made findings and rulings on January 23, 2025.” Those rulings included denying Mother’s motion for CCP sanctions against Botros, denying Father’s request for sanctions under Family Code section 271, and granting Mother’s request for sanctions against Father under section 271. In a footnote, the court explained that it had denied Mother’s CCP sanctions motion against Botros because it found that the failure to disclose the District’s e-mail was not intentional. The court further explained, however, that at the January 2025 hearing it “took under submission the issue of the amount of [Family Code section] 271 sanctions and asked Mother for clarifying records to determine the appropriate amount.” Having received and reviewed those records, the court awarded Mother $75,359 in sanctions against Father “representing fees and costs relating to the initial hearing” on Father’s RFOs, “a portion of the appellate work,” and “fees and costs associated with the instant [RFOs] for [section] 271 sanctions.” The court excluded fees and costs associated with Mother’s unsuccessful requests for CCP sanctions against Botros. The court also reduced the sanctions award “due to Mother initially providing 6 misleading information” to Father. The court explained that while Father’s and Botros’s material misrepresentations unnecessarily delayed proceedings, Mother was “not without fault” because “[s]he was not honest with Father about [A.G.’s] attendance.” DISCUSSION I Father contends that we lack jurisdiction to review the court’s January 23, 2025 order because the notice of appeal did not list it as a basis for appeal.2 We agree. Mother’s notice of appeal reads, in relevant part, that she “appeals from a judgment or order in this case” entered on “3/13/2025.” A box is checked indicating that the order being appealed is attached, and the attachment consists of the family court’s March 13, 2025 “Findings and Order Re: § 271 Sanctions.” As noted, that order only addressed the amount of sanctions to be awarded to Mother and against Father under Family Code section 271. The notice of appeal did not mention or attach the court’s prior order of January 23, 2025 denying Mother’s separate motion for CCP sanctions against Botros. “ ‘Our jurisdiction on appeal is limited in scope to the notice of appeal and the judgment or order appealed from.’ [Citation.] We have no jurisdiction over an order not mentioned in the notice of appeal.” (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170.) Nearly a century ago, the Supreme Court held that a portion of a judgment denying the appellants a lien was “not properly a subject of review” in the appeal because the notice of appeal only stated that the appeal was 2 Mother did not address this jurisdictional issue in her opening brief and did not file a reply brief. 7 from “ ‘so much of the judgment herein as denies relief to the plaintiffs against the said defendant[.]’ ” (Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 91 (Glassco).) The court observed that the notice of appeal made “no mention of that separate and distinct portion of the judgment denying plaintiffs a lien. It is elementary that an appeal from a portion of a judgment brings up for review only that portion designated in the notice of appeal.” (Id. at p. 92.) While acknowledging that notices of appeal “are to be liberally construed with a view to hearing causes on their merits,” the Glassco court nonetheless held that the notice’s description of the portion of the judgment appealed from was “so clear and unmistakable as to preclude a description of that portion of the judgment denying appellants a lien.” (Ibid.) Subsequent cases have applied this rule to circumstances in which the notice of appeal clearly specifies only one of multiple appealable judgments or orders. In Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, the Court of Appeal observed: “The rule favoring appealability in cases of ambiguity cannot apply where there is a clear intention to appeal from only part of the judgment or one of two separate appealable judgments or orders.” (Id. at p. 47.) In Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, the court explained that “[w]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.” (Id. at p. 173, internal quotation marks omitted; accord Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239; DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.) “The policy of liberally construing a notice of appeal in favor of its sufficiency . . . does not apply if the notice is so specific 8 it cannot be read as reaching a judgment or order not mentioned at all.” (Filbin, at p. 173; see also Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625 [Court of Appeal was “without authority to liberally construe the notice of cross-appeal” to include judgment on an “eighth cause of action” when the notice “specifically state[d] an intention to appeal ‘from the Judgment on the Tenth Cause of Action’ ” entered on the same date].) Here, Mother’s notice of appeal is unambiguous. It specifically states an intention to appeal from “a judgment or order in this case” entered on “3/13/2025.” The notice only attaches the family court’s March 13, 2025 written order and makes no mention of the court’s January 23, 2025 findings and rulings on the request for CCP sanctions against Botros. The order appealed from is, in the words of the Supreme Court in Glassco, “clear and unmistakable.” (Glassco, supra, 217 Cal. at p. 92.) The court’s March 13, 2025 order also makes clear that by then, the court had already resolved outstanding issues relating to the CCP sanctions in its January 23, 2025 findings. The court repeatedly referred to its previous rulings on the requested CCP sanctions in the past tense and explained that the only remaining issue it took under submission at the January 23, 2025 hearing was determining the appropriate amount of Family Code section 271 sanctions to be awarded against Father. Accordingly, we lack jurisdiction to review the court’s January 23, 2025 order denying Mother’s separate motion for CCP sanctions against Botros. “Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment [or order] being appealed.” (In re J.F. (2019) 39 Cal.App.5th 70, 76, internal quotation marks omitted.) We therefore turn our attention to the amount of Family Code 9 section 271 sanctions awarded against Father, the only issue properly before us. II Mother contends that the $75,359 sanctions award under Family Code section 271 was “woefully inadequate under the circumstances.” Family Code section 271 provides that a family court may “impose an award of attorney fees and costs ‘in the nature of a sanction’ where the conduct of a party or attorney ‘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.’ (§ 271, subd. (a).)” (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1316.) Put another way, Family Code section 271 “vests family law courts with an additional means with which to enforce this state’s public policy of promoting settlement of family law litigation, while reducing its costs through mutual cooperation of clients and their counsel.” (Id. at p. 1318.) “We review an award of attorney fees and costs under section 271 for abuse of discretion.” (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 291.) Mother argues that the court’s reduction of the sanctions award based on Mother’s own fault in exacerbating the conflict is arbitrary, and that the court should have awarded her fees related to her motion for CCP sanctions. We disagree. First, as noted, the court denied Mother’s motion for CCP sanctions, and Mother has not properly appealed the court’s denial. Second, while Family Code section 271 mandates that sanctions be “tethered” to attorney fees and costs and may not be imposed as punishment of the sanctioned party (In re Marriage of Erndt & Terhorst (2021) 59 Cal.App.5th 898, 904), the statute vests courts with the discretion to impose only a portion of the fees and costs expended by the non-sanctioned party (In re Marriage of 10 Battenburg (1994) 28 Cal.App.4th 1338, 1346 [Family Code section 271 “does not require that the sanction imposed compensate for all fees and costs expended”]). In other words, although the court could not have “punished” Father with a sanctions award untethered to Mother’s attorney fees and costs, Mother has not shown the court abused its discretion in deciding to award her only a portion of the requested sanctions because she contributed to delays in the proceedings. Mother has not otherwise shown that the amount of sanctions awarded was arbitrary. Indeed, other than the two arguments we have rejected above, Mother’s opening brief articulates no specific reason why she believes that awarding $75,359 in sanctions was an abuse of discretion. The record shows the court had information which would allow it to make a reasoned determination of an appropriate amount of sanctions, including its decision not to award the full amount of fees. On January 15, 2025, Mother filed a supplemental brief in support of her sanctions motions which requested fees and costs totaling $171,443.59. The supplemental brief referenced previously filed declarations from Mother’s counsel attaching billing records that were lodged with the family court, but not included in the record in this appeal. At the January 2025 hearing, the court and the parties discussed whether the billing records for a significant portion of the requested fees were so heavily redacted as to make it difficult for the court to determine what tasks the fees were related to. More specifically, billing records for fees incurred from the date of the District’s e-mail through the date Mother filed her sanctions requests totaled approximately $89,000 and contained “lighter” redactions. However, the billing records for fees incurred after that point and up to the filing date of the supplemental brief were heavily redacted to cover the descriptions of work completely. Father argued 11 at the hearing and in his opposition briefs to Mother’s sanctions motions that the redactions in those billing records made it impossible to determine which fees were reasonable. On appeal, Mother fails to address this relevant context for the court’s determination of the sanctions amount, despite having the burden of showing the court abused its discretion. (See Pont v. Pont (2018) 31 Cal.App.5th 428, 447, 449 [reviewing court can only reverse sanctions if party opposing sanctions establishes abuse of discretion]; see also Keyes v. Bowen (2010) 189 Cal.App.4th 647, 656 [“It is the appellant’s responsibility to support claims of error with citation and authority; this court is not obligated to perform that function on the appellant’s behalf.”]) “The imposition of sanctions under [Family Code] section 271 is committed to the sound discretion of the trial court. The trial court’s order will be upheld on appeal unless the reviewing court, ‘considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order.’ [Citation.]” (In re E.M. (2014) 228 Cal.App.4th 828, 850.) “We presume that the court properly applied the law and acted within its discretion unless the appellant affirmatively shows otherwise.” (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 158 [in context of statutory attorney fees award under Code of Civil Procedure section 1021.5].) Because Mother has made no argument addressing the specific amount of the sanctions, nor engaged with the facts in the record that would support the court’s determination, she has not met her burden to show reversible error in the March 13, 2025 sanctions order. 12  DISPOSITION The family court’s March 13, 2025 order awarding $75,359 in sanctions to Mother under Family Code section 271 is affirmed. Father may recover his costs on appeal. BUCHANAN, J. WE CONCUR: MCCONNELL, P. J. DATO, J. 13