Fisher v. Fisher CA3

Filed 10/28/26 Fisher v. Fisher CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Butte) JEFF FISHER, C106112 Plaintiff and Appellant, (Super. Ct. No. 25CV00744) v. JENNIFER FISHER, Defendant and Respondent. Jeff Fisher 1 appeals from an order denying his motion for relief from an attorney’s fees award and ordering him to pay an additional $1,800 in sanctions. On appeal, Jeff raises various arguments pertaining to his assertion that his assets and income are exempt from levy. He also contends the trial court abused its discretion in awarding sanctions. Because the procedural requirements for issuing sanctions under Code of Civil Procedure section 128.7 2 were not satisfied, we reverse the order insofar as it orders the payment of $1,800 in sanctions. We affirm the court’s denial of Jeff’s motion for relief from the attorney’s fees order. 1 We refer to the parties by their first names to avoid confusion. No disrespect is intended. 2 Undesignated statutory references are to the Code of Civil Procedure. 1  I. BACKGROUND In March 2025, Jeff sued his sister, Jennifer, for defamation after she submitted a written declaration in support of his ex-wife in a domestic violence and child custody proceeding. Jennifer filed an anti-SLAPP motion to strike the complaint and for attorney’s fees and costs under section 425.16. 3 On May 28, 2025, the court granted Jennifer’s motion to strike the complaint in its entirety and ordered Jeff to pay her $4,200 for attorney’s fees within 30 days. Jeff did not appeal this order. On November 5, 2025, based on Jennifer’s motion, the court issued an order to show cause on December 17, 2025, why Jeff should not be held in contempt of court for failing to pay the $4,200 in attorney’s fees. The court also ordered Jeff to show cause why it should not award Jennifer an additional $1,800 in attorney’s fees for bringing the most recent motion. The record on appeal indicates Jeff submitted a memorandum in response claiming exemption from the court ordered attorney’s fees award. Notably, this memorandum is not in the record on appeal. Jennifer filed a response. On December 17, 2025, after the hearing, the court issued a ruling that stated: “The Court finds a lack of willful disobedience to support a finding of contempt, and the Order to Show Cause issued on November 5, 2025[,] is vacated. Further, the Court declines to issue an award of additional attorney’s fees incurred in relation to the Motion for Order to Show Cause re Contempt of Court, as requested by the Defendant. However, based on the evidence and testimony presented, it does appear that Plaintiff has 3 The anti-SLAPP statute “provides for early dismissal of certain actions known as ‘strategic lawsuits against public participation.’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85.) The prevailing defendant on an anti-SLAPP motion “shall be entitled to recover that defendant’s attorney’s fees and costs.” (§ 425.16, subd. (c)(1).) 2 assets outside of his exempt sources of income to pay the previously awarded attorney’s fees. Therefore, the Court orders that Plaintiff pay the Defendant’s attorney’s fees in the amount of $4,200 as previously ordered on May 28, 2025, within thirty (30) days’ notice of this Ruling.” Thereafter, Jeff filed a motion for relief from the attorney’s fees order. He asserted his VA disability compensation and Social Security benefits were found to be exempt by the court at the December 17, 2025 hearing, 4 and other assets were exempt under sections 704.010, 704.060, 704.730, and 704.740. Jennifer argued the motion was an improper motion for reconsideration in disguise. She argued Jeff’s response to the order to show cause had asserted the same exemptions. In her January 7, 2026 opposition brief, Jennifer asked the court to consider sanctions under section 1008, subdivision (d) for filing a motion for reconsideration that failed to meet the statutory requirements for one. Jennifer’s attorney indicated she had incurred $1,800 in attorney’s fees responding to Jeff’s most recent motion. On February 4, 2026, the court issued a ruling denying Jeff’s motion for relief from the attorney’s fees order. The court explained a judgment debtor generally cannot file a claim of exemption before a levy is made on their property. Therefore, the court denied the motion as premature. The court further stated, “[a]dditionally, because it is unclear under which statutory authority Plaintiff seeks relief by way of this motion, should the Court deem the motion a Motion for Reconsideration under [section] 1008,” the motion would be denied on the basis Jeff had failed to show new or different facts or law, allege changed circumstances, or offer any explanation as to why these exemption 4 On appeal, Jeff argues fee awards cannot be enforced against this income and an exemption for failing to pay child support does not apply. We need not address these arguments because the court apparently agreed this income is exempt and the arguments are irrelevant to the correctness of any of the trial court’s orders. 3 arguments could not have been raised earlier. The court awarded “additional monetary sanctions in the amount of $1,800” against Jeff. Jeff filed a timely appeal from the February 4, 2026 ruling. II. DISCUSSION A. Denial of Motion for Reconsideration “ ‘Code of Civil Procedure section 1008, subdivision (a) provides that a party affected by a prior court order may, “based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” (Code Civ. Proc., § 1008, subd. (a).)’ ” (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.) “Courts have construed section 1008 to require a party filing an application for reconsideration or a renewed application to show diligence with a satisfactory explanation for not having presented the new or different information earlier.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) “A trial court’s ruling on a motion for reconsideration is reviewed under the abuse of discretion standard.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.) Jeff argues his motion for relief from the attorney’s fees order was not a motion for reconsideration because his asset exemption arguments were new and “exemption claims are defenses to collection, not challenges to the underlying judgment.” We are unpersuaded. Indeed, several of his arguments explicitly challenge the earlier December 17, 2025 order and its findings. He argues the trial court erred in finding non-exempt assets in the December 17 ruling without identifying them, and that he was denied a meaningful opportunity to assert exemptions. The trial court concluded Jeff did not show new or different facts or law, allege changed circumstances, or offer any explanation as to why his arguments could not have been raised earlier. He argues on appeal, citing his reply brief in the trial court, that “the assets were newly placed at issue at the December 17 hearing and could not have been 4 raised earlier.” The citations do not support this assertion. On the cited pages of his reply brief, Jeff argued, as he does on appeal, that his motion was not subject to section 1008 at all. As such, Jeff did not explain to the trial court how he met the requirements for one. Within an argument that the December 17, 2025 hearing did not analyze specific exemptions, Jeff stated that “[a]t that hearing, the Court raised questions regarding the value of Judgment Debtor’s assets. Judgment Debtor stated honestly that he needed time to investigate the actual values of the applicable exemptions under current law and compare them to the estimated values of his assets. This motion is Judgment Debtor’s good-faith effort to provide the Court with that detailed analysis.” These statements do not, as Jeff suggests, contradict the trial court’s conclusions. They are also insufficient to demonstrate a basis for reconsidering the court’s December 17 ruling. As such, the court did not abuse its discretion in denying his motion to the extent it was a motion for reconsideration. B. Sanctions Jeff argues the trial court abused its discretion in awarding sanctions because no statutory authority was cited, no finding of bad faith or frivolousness was made, 5 and the procedural requirements of section 128.7—including the mandatory safe harbor provision—were not referenced. He also argues his motion was not frivolous. Jennifer asserts, as she did in the trial court, that the sanctions were proper under section 1008, subdivision (d). “To deter parties from filing noncompliant renewed applications” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC, supra, 61 Cal.4th at p. 840), it provides that “[a] violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7” (§ 1008, subd. (d), italics added). 5 “When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.” (§ 128.7, subd. (e).) 5  Section 128.7, in turn, allows a court to impose sanctions against parties and attorneys who file papers in court frivolously or for an improper purpose. (§ 128.7, subds. (b)-(c).) There are specific procedural steps that must be followed before a court imposes section 128.7 sanctions either on its own motion or based on a motion filed by a party. (§ 128.7, subd. (c)(1)-(2).) These same procedural requirements apply to a request for monetary sanctions under section 1008. (Moofly Productions, LLC v. Favila (2018) 24 Cal.App.5th 993, 997 [holding “the requirements of section 128.7 do apply to sanctions imposed under section 1008, subdivision (d)” and reversing trial court’s sanction award under section 1008 for failure to comply with 21-day safe harbor period of section 128.7].) Here, these requirements were not met. The court did not issue an order to show cause. (See § 128.7, subd. (c)(2).) To the extent Jennifer’s opposition brief mentioned sanctions, it did not comply with section 128.7: “The safe harbor provisions of section … 128.7 … have been interpreted to require a two-step procedure .… ‘First, the “ ‘moving party must serve on the offending party a motion for sanctions.’ ” [Citation.] Service of the sanctions motion triggers the 21-day safe harbor period during which the moving party may not file the motion. [Citation.] That is because the offending party may avoid sanctions by withdrawing the challenged pleading during the 21-day period. [Citation.] Second, if the offending party does not withdraw the challenged pleading during that period, then the moving party may file the sanctions motion.’ ” (Ari Law P.C. v. AutoNation.com, Inc. (2026) 122 Cal.App.5th 898, 907.) “We generally review orders for monetary sanctions under the deferential abuse of discretion standard.” (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698; see also Del Biaggio v. Bansen (2026) 121 Cal.App.5th 831, 841 [“We review sanctions orders, including those issued pursuant to the court’s authority under section 1008, for abuse of discretion”].) However, failure to comply with the safe harbor requirements of section 128.7 precludes an award of sanctions and necessitates reversal. (Martorana, supra, at p. 700.) Accordingly, we reverse the award of $1,800 in sanctions. 6 C. Exemption Claims Were Premature Jeff argues the trial court created “an impermissible catch-22” by denying his exemption claims as premature. However, he has failed to demonstrate this is true or that the trial court erred in concluding the claims were premature. (See §§ 703.010, subd. (a) [“The exemptions provided by this chapter or by any other statute apply to all procedures for enforcement of a money judgment”], 703.510, subd. (a) [“property that has been levied upon may be claimed to be exempt as provided in this article”], 703.520 [procedures for filing claim for exemption with levying officer].) Additionally, Jeff’s argument is premised on his rejection of the court’s finding in the December 17, 2025 order that he appears to have non-exempt assets sufficient to pay the attorney’s fees award. Therefore, we must also reject it because he has failed to demonstrate a basis for revisiting that prior order in this appeal. Jeff’s argument that the trial court failed to address the substantive arguments set forth in his reply brief is unavailing. The court effectively answered his substantiative arguments by concluding his motion was premature and did not meet the requirements for a motion to reconsider. Because we affirm these conclusions for the reasons set forth above, we need not address these substantive arguments further, including his argument that his home equity is fully protected by the homestead exemption. 7  III. DISPOSITION The court’s order of February 4, 2026, is reversed insofar as it orders the payment of $1,800 in monetary sanctions. In all other respects, the order is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a).) /S/ RENNER, J. We concur: /S/ ROBIE, Acting P. J. /S/ DAMRELL, J. 8