Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. OFLRS30205 Ben T. Kayashima, Judge. (Retired judge of the San Bernardino Super. Ct., sitting under assignment by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
J. Brian Watkins for Objector and Appellant.
Law Offices of Pittullo, Howington, Barker & Abernathy and P. Timothy Pittullo for Plaintiff and Respondent.
OPINION
Codrington J.,
I
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
This appeal concerns a decade-long dispute about sanctions (§ 904.1, subd. (a)(12)) between two family law attorneys, P. Timothy Pittullo (Pittullo), who represents respondent, Sissie B. Barker, formerly Sissie McQuiggan (Barker), and John F. Watkins (Watkins), appellant, who represented Patrick L. McQuiggan (McQuiggan), who is not a party to the appeal.
Watkins is represented by his son, J. Brian Watkins. Pittullo is the former husband and law partner of Barker, who is also a lawyer.
Postjudgment proceedings have been pending since 1997. In 1986, Barker sued for divorce from her former husband, McQuiggan. In 1991, Barker and McQuiggan agreed to a stipulated judgment. In 1997, Watkins began representing McQuiggan and filed a motion for change of venue from San Bernardino County to Los Angeles County. Barker sought sanctions based on the venue motion. In the intervening years, Watkins was prosecuted and convicted in a related criminal case. In 2009, the trial court ordered sanctions of $87,992 against Watkins for filing the venue motion in bad faith.
Watkin’s appeal challenges two interim statements of decision and a final order issued by Judge Ben T. Kayashima in 2000, 2007, and 2009. The only issue involves the propriety of the sanctions awarded by the trial court against Watkins under section 128.5.
Watkins asserts that Barker’s claim is barred on procedural grounds by a one-year statute of limitations, the operation of section 1008, and the application of collateral estoppel. He also contends there is no statutory authority for attorney’s fees awarded as sanctions under section 128.5, that sanctions are not justified, and that the trial court’s order is not supported by findings. We hold the trial court did not abuse its discretion and affirm.
II
FACTUAL AND PROCEDURAL BACKGROUND
To assist the reader’s understanding of this convoluted case, we distill the pertinent facts. Other material facts will be discussed in our analysis as necessary.
A. 1986-2006
In 1986, Barker filed the petition for marital dissolution. The case was settled by the stipulation of the parties in 1991.
Barker, a lawyer, had contracted with the County of San Bernardino to provide services as court-appointed minor’s counsel in family law proceedings. In 1996, the court appointed Barker as minor’s counsel for Justin Oleesky, the son of Steven Oleesky (Oleesky), who was also appellant Watkins’s client. On April 21, 1997, Barker asked to be relieved as minor’s counsel for Justin Oleesky.
On April 29, 1997, Watkins, representing McQuiggan, filed a motion for change of venue from San Bernardino to Los Angeles County. Watkins claimed the motion was preliminary to seeking modification of child support. The motion was based on McQuiggan’s contention that he could not receive a fair hearing in the San Bernardino Superior Court because Barker was employed by the court as minor’s counsel. Furthermore, Barker was a codefendant in other cases brought against her and other county judges by Oleesky and another plaintiff.
Lester v. San Bernardino County, et al. (U.S. Dist. Ct., No. 971218SVW(CWx)); Oleesky v. Barker (San Bernardino Super. Ct., RCV27536); and Oleesky v. Barker (Riverside Super. Ct., RIC314663).
In May 1997, Barker filed a motion seeking sanctions of $50,000 against Watkins for his part in filing the motion to change venue. In May 1998, after various interim proceedings, the court conducted a hearing on the motion for change of venue and the issue of sanctions. Barker argued there was no pending action, making a motion for change of venue superfluous. Additionally, Barker renewed her request for sanctions, asking for $10,000 and $2,000. Watkins argued there were pending justiciable issues about support, custody, and visitation. He disputed there were any grounds for sanctions. The court denied the motion for change of venue and denied the motion for sanctions “without prejudice for failure to itemize attorney’s fees.”
In March 1999, Barker renewed her motion for sanctions, seeking the total sum of $25,000, against Watkins. She asserted that Watkins and Oleesky had tried to intimidate her by soliciting McQuiggan, her ex-husband, to reopen the family law case. In September 1999, Barker amended her motion and asked for additional sanctions against Watkins, J. Brian Watkins, their law firm, another lawyer, Susan Golding (Golding), and McQuiggan. Watkins responded he brought the motion for change of venue in good faith. He denied acting improperly in his dealing with Barker in the family law case or the Oleesky disputes.
In October 1999, a related criminal action was filed against Watkins, Oleesky, and other defendants in Orange County. (People v. Oleesky (Orange Super. Ct., No. OJ99CF2736).)
Watkins filed another motion to disqualify Judge Kayashima in February 2000. After that motion was denied, the court issued a statement of decision on May 26, 2000, in which it determined that Barker’s amended motion for sanctions was timely and therefore subject to the court’s determination.
In June 2000, the court granted a motion to relieve Watkins as counsel for McQuiggan. Barkers’ sanctions motion was then in abeyance until 2007 due to the pending criminal case against Watkins. In 2003, Watkins was convicted of conspiracy to obstruct justice, perjury by declaration, and conspiracy to commit stalking. As discussed in the appellate opinion from Division Three of the Fourth District, the first and third counts involved conduct against Barker. (People v. Watkins (Sept. 26, 2006, G032770, G035971) [nonpub. opn.] pp. 16-21, 26-40, 44-48.)
Evidence Code sections 452, subdivision (d), and 459.
B. 2007
In April 2007, Watkins filed a motion to dismiss Barker’s pending sanctions motion, relying on theories of retraxit, res judicata, and collateral estoppel. His contention was that her claims should have been raised by her cross-complaint in a civil action, Oleesky v. Barker, supra, RIC314663. The court denied the motion without prejudice as procedurally incorrect. Watkins then renewed the motion to dismiss sanctions.
In October 2007, Barker requested attorney’s fees of $77,255 as sanctions for the venue motion.
On October 25, 2007, the court issued a second statement of decision. The court found that, after Barker became the court-appointed attorney for Justin Oleesky in October 1996, she and other court personnel were subjected to personal surveillance. The court further found that, as additional harassment, Oleesky’s agents solicited McQuiggan to hire Watkins as his attorney. After the court denied Barker’s 1997 sanctions motions without prejudice, she filed a second motion in 1998. She asserted that Watkins had filed a meritless motion for change of venue, she had been forced to withdraw from the representation of Justin Oleesky, and Watkins had threatened to release confidential information obtained about her in an Evidence Code section 730 evaluation in the family law case. Although the court agreed that some of Barker’s claims were barred, the court concluded that Barker was not barred from litigating her sanctions motion based on the purportedly wrongful conduct of filing the motion for change of venue.
According to the record, Barker had her tires slashed, was run off the road, and was followed and photographed.
C. 2008-2009 Hearings
The hearing on sanctions continued in April 2008. Watkins testified that he was in the hospital with kidney disease when McQuiggan retained his firm after meeting with Golding in Las Vegas. McQuiggan was seeking a reduction in child support payments. Before filing the venue motion, Watkins had written Barker’s lawyer and asked for a stipulation to a change in venue. Watkins explained he brought the motion for change of venue because Barker was acting as a quasi-judicial officer for the San Bernardino Superior Court and he sought to have a more neutral forum. Watkins asserted he brought the venue motion in good faith. Watkins denied the statements made in the appellate opinion, People v. Watkins, supra, G032770, about his criminal conduct against Barker involving obstructing justice and stalking.
Apparently Golding testified in 1999 but no reporter’s transcript is available.
Watkins denied ever soliciting McQuiggan or being directed by Oleesky to represent McQuiggan. Instead, he claimed Thomas Kendall, another lawyer retained by Oleesky, hired Crystal Investigations and pursued an aggressive strategy on behalf of Oleesky. Watkins was also the attorney representing Oleesky in his taxpayer action against Barker and the San Bernardino court and judges. He denied that the purpose of the action was to dissuade Barker from representing Justin Oleesky as minor’s counsel.
McQuiggan testified that he was contacted in Las Vegas by Oleesky’s investigators, Crystal Investigations, and Golding, who offered to help him obtain a reduction in child support. McQuiggan met with Watkins and discussed changing the venue of the case. He signed a promissory note for a $50,000 loan from Oleesky to pay the investigators and the attorney. He understood he would not have to repay the money and that the note was a formality.
At the request of the court, Pittullo submitted his declaration for attorney’s fees, incurred in the motions for change of venue and for sanctions, in the amount of $139,184.70.
On July 7, 2009, the court issued its order finding that Watkins acted in bad faith by filing the motion for change of venue. The court ordered sanctions in the amount of $87,992 under section 128.5. The court included a detailed itemized four-page statement of fees and costs, incurred in the 10 years between 1999 and 2009. Each item is described particularly as it relates to the ongoing sanctions motion filed by Barker.
Watkins appealed from the court’s statements of decision in 2000 and 2007 and the final order in 2009.
III
STATUTE OF LIMITATIONS, SECTION 1008, COLLATERAL ESTOPPEL
Before addressing the substantive basis for the sanctions award, we first consider Watkins’s procedural arguments about the statute of limitations, section 1008, and collateral estoppel.
A. Statute of Limitations and Section 1008
As discussed previously, Watkins filed the venue motion in April 1997. Barker filed her first sanctions motion in May 1997. In May 1998, the court denied the venue motion and denied the sanctions motion without prejudice. In March 1999, Barker filed a second sanctions motion. Watkins maintains the second sanctions motion was untimely because it was not filed within one year of April 1997. The trial court found it was timely because it was filed within one year after May 1998.
We disagree with Watkins’s assertion that the second sanctions motion had to be filed before the venue motion was denied. According to Watkins’s reasoning, Barker would have been compelled to file the second sanctions motion in April 1998 before the venue motion and the first sanctions motion even had a hearing in May 1998.
We conclude there is no expressly-stated statutory time limit on a motion for sanctions under section 128.5 or section 128.7. But whether the correct limitations period is one year (§§ 340, subd. (a) or 340.6) or four years (§ 343), where “the second motion was a renewal of the first with the implied consent of the court.” (Majors v. County of Merced (1962) 207 Cal.App.2d 427, 435; Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 1011-1012 [4th Dist., Div. 2], disapproved on another ground in Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1605-1608 [4th Dist., Div. 2], the second sanctions motion could properly be filed within one year after the court denied the first motion without prejudice.)
Furthermore, Barker did not have to comply with requirements of section 1008, which apply to a motion for reconsideration. That statute operates when the court refuses a motion in whole or in part, or grants it, or grants it conditionally. A reconsideration motion asks the court to review new or different facts, circumstances, or law. (§ 1008, subd. (a).) Instead, in the present case, Barker filed the second sanctions motion at the invitation of the trial court, supplying it with the itemized information substantiating the claimed attorney’s fees.
In summary, we conclude that the second sanctions motion was timely filed within one year after the court denied the first sanctions motion without prejudice to renewing it based on more detailed information about attorney’s fees.
B. Collateral Estoppel
Watkins also argues that any sanctions award should be barred because the conduct by Watkins and Oleesky, as described in Barker’s sanctions motion, is the same conduct which formed the basis for Barker’s cross-complaint against Watkins in Oleesky’s civil action against her and the court and judges. Watkins contends the dismissal with prejudice operated as a judgment in favor of him and barred Barker from litigating the same matters in the sanctions motion. (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Cas. & Surety Co. (2005) 133 Cal.App.4th 1319, 1330-1331.) In other words, because Barker sued Watkins but dismissed that action with prejudice in 2002, she cannot recover sanctions awarded against him in 2009 in the family law case.
On this issue, Judge Kayashima provided a lengthy analysis in his 2007 statement of decision. As noted by the court, Barker’s cross-complaint against Watkins alleged six intentional torts for intentional infliction of emotional distress, invasion of privacy, slander, libel, and intentional interference with economic advantage. There is no mention in the cross-complaint about wrongly filing a motion for change of venue. The trial court determined Barker was not barred from seeking sanctions for the latter because it was a matter that was not and could not have been raised in her cross-complaint. The right to be free of meritless litigation was a different primary right than the six other torts identified in the cross-complaint. The trial court found that “filing the change of venue motion is the only viable ground for ordering sanctions, because it is the only act that could not properly have been raised in any of the causes of action in [Barker’s cross-complaint.]”
Based on our de novo review, we agree with the trial court. Although there may have been overlapping conduct discussed in the sanctions motion and the cross-complaint, the two proceedings are concerned with different primary rights and harm and contemplate different remedies. (Alpha Mechanical, Heating & Air Conditioning, Inc. v. Travelers Cas. & Surety Co., supra, 133 Cal.App.4th at pp. 1326-1327 and 1330-1334.) The dismissal of Barker’s civil cross-complaint did not preclude the court from ruling on her sanctions motion in the family law case.
IV
A. Standard of Review
Section 128.5 applies to cases filed before 1995 and was superseded by section 128.7. (Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 812; Clark v. Optical Coating Laboratory, Inc. (2008) 165 Cal.App.4th 150, 164; In re Marriage of Drake (1997) 53 Cal.App.4th 1139.) The standard of review is abuse of discretion:
“Section 128.5 gives the trial court discretion to award ‘reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.’ (Id., subd. (a).) ‘“Frivolous” means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party.’ (Id., subd. (b)(2).) ‘Section 128.5 permits the trial court to impose sanctions under certain narrowly defined conditions. Sanctions are warranted only if the moving party meets its burden of proving that the opposing party’s action or tactic was (1) totally and completely without merit, measured by the objective, “reasonable attorney” standard, or (2) motivated solely by an intention to harass or cause unnecessary delay, measured by a subjective standard. [Citations.] Whether sanctions are warranted depends on an evaluation of all the circumstances surrounding the questioned action. [Citation.]’ (Weisman v. Bower (1987) 193 Cal.App.3d 1231, 1236, fn. omitted.)
“‘The award of sanctions for a frivolous action [or tactic] under Code of Civil Procedure section 128.5 is within the sound discretion of the trial court. [Citation.] Once imposed, “[the] test on appeal is whether the trial court has abused the broad discretion to justify our interference with a sanction award.” [Citation.] In reviewing that exercise of discretion we are informed by “several policy guidelines: (a) an action that is simply without merit is not by itself sufficient to incur sanctions; (b) an action involving issues that are arguably correct, but extremely unlikely to prevail, should not incur sanctions; and (c) sanctions should be used sparingly in the clearest of cases to deter the most egregious conduct.” [Citations.]’ (Bach v. McNelis (1989) 207 Cal.App.3d 852, 878-879.) ‘In accordance with the usual rule on appeal, the judgment or order of the trial court is presumed correct. All intendments and presumptions are indulged to support it on matters to which the record is silent, and error must be affirmatively shown. [Citation.] Where evidence is in conflict, the appellate court will not disturb the findings of the trial court. [Citation.]’ (Ellis v. Roshei Corp. (1983) 143 Cal.App.3d 642, 645, fn. 2.)” (Wallis v. PHL Associates, Inc. (2008) 168 Cal.App.4th 882, 893.)
B. Attorney’s Fees Under Section 128.5
As a threshold issue, Watkins contends a sanctions award under section 128.5 cannot include the attorney’s fees incurred in litigating the sanctions motion itself. This was an issue that this court declined to consider in Brewster v. Southern Pacific Transportation Co. (1991) 235 Cal.App.3d 701, 716, fn. 4 [4th Dist., Div. 2]. On this occasion, we decide the issue in favor of the party seeking attorney’s fees for her sanctions motion.
Before section 128.5 was enacted in 1981, the California Supreme Court reversed a sanctions award based on attorney’s fees in a personal injury action because it was not authorized by statute. (Bauguess v. Paine (1978) 22 Cal.3d 626, 634-636.) Section 128.5 was enacted in response to Bauguess to supply statutory authority for an award of sanctions. Section 128.7 superseded section 128.5, expressly providing “the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.” (§ 128.7, subd. (c)(1); Clark v. Optical Coating Laboratory, Inc., supra, 165 Cal.App.4th at p. 164.) Watkins reasons that, unlike section 128.7, section 128.5 does not permit fees for the sanctions motion itself.
We disagree with Watkins on this point because we recognize the statute should be broadly construed in light of its legislative purpose to control meritless litigation: “[S]ection 128.5 authorizes the award of attorneys’ fees as a sanction to control improper resort to the judicial process. The statute permits the award of attorneys’ fees, not simply as appropriate compensation to the prevailing party, but as a means of controlling burdensome and unnecessary legal tactics. The enacting legislation states: ‘It is the intent of this legislation to broaden the powers of trial courts to manage their calendars and provide for expeditious processing of civil actions by authorizing monetary sanctions now not presently authorized by the interpretation of the law in Bauguess v. Paine (1978) 22 Cal.3d 626.’
“Consistent with this legislative purpose, the trial court is not required to make a ‘strict accounting’ of expenses in imposing the sanctions. [Citation.] Dwyer v. Crocker National Bank (1987) 194 Cal.App.3d 1418, 1438, holds: ‘It should be noted that in the matter of an award of attorneys fees under CCP § 128.5, the court is not bound in its determination by such traditional factors as hours consumed, statements mailed, results attained, and the like. Such an award for attorneys fees is not the subject of a “strict accounting” as might be required in other areas of the law such as in the administration of trusts and estates.’ The holding recognizes implicitly that section 128.5 should be construed to effectuate the legislative purpose of controlling bad faith and frivolous litigation.” (On v. Cow Hollow Properties (1990) 222 Cal.App.3d 1568, 1577.)
The same liberal approach was used in Abandonato v. Coldren (1995) 41 Cal.App.4th 264, 268-269, disapproved on other grounds in Musaelian v. Adams (2009) 45 Cal.4th 512, 520: “[S]anctions under... section [128.5] are not limited to court costs and attorney fees but include those reasonable expenses ‘directly related to and in furtherance of the litigation’ (Brewster v. Southern Pacific Transportation Co. (1991) 235 Cal.App.3d 701, 711) which are ‘incurred as a result of bad faith actions and tactics.’ (Tenderloin Housing Clinic, Inc. v. Sparks [(1992) 8 Cal.App.4th 299, ] 307.) For example, sanctions have been awarded to a party as ‘compensation for time spent by [the party’s] personnel in defending against the cross-complaint’ (580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 27), and as ‘compensation for airfare and reimbursement for lost vacation’ time. (Tenderloin Housing Clinic, Inc. v. Sparks, supra, 8 Cal.App.4th at p. 307.)
“‘... At least in theory, a judgment for sanctions could be greater than the amount of attorney time actually billed [and it] is more like a money judgment compensating a party for harmful conduct than it is like an award of fees as part of the costs of the lawsuit.’ (Banks v. Manos (1991) 232 Cal.App.3d 123, 128-129.)...
“Finally, compensating the attorney for reasonable expenses in defending against sanctionable activities furthers the intent of Code of Civil Procedure section 128.5. This section was enacted ‘to facilitate the early weeding out of patently meritless claims and to permit the imposition of sanctions in the initial lawsuit-against both litigants and attorneys-for frivolous or delaying conduct....’ (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 873-874, citations omitted.)”
In the present case, it comported with statutory policy to award attorney’s fees as sanctions for conduct deemed by the court to be in bad faith and constituting burdensome, unnecessary, frivolous, and delaying legal tactics. We also summarily reject Watkins’s protest that Barker cannot recover fees because she and Pittullo were once married and law partners. Pittullo, not Barker, is seeking to be compensated for fees incurred in his representation of Barker. This is not a case involving “an attorney who responds in pro se to a filing abuse [who] may not recover sanctions under section 128.7 in the form of an award of attorney fees” as in Musaelian v. Adams, supra, 45 Cal.4th at page 520. Barker is an attorney represented by another attorney, albeit her former law partner. (Gilbert v. Master Washer & Stamping Co., Inc. (2001) 87 Cal.App.4th 212, 214.)
C. Discretionary Award of Fees
Having determined that attorney’s fees for the sanctions motions are authorized under section 128.5, we next decide that sufficient evidence supported the court’s exercise of discretion in finding bad faith and awarding attorney’s fees for Watkins’s conduct in filing the venue motion.
Watkins misstates the record when he claims “the trial court admitted that collateral estoppel forbids reference to issues of ‘soliciting and retaining McQuiggan as a client.’” The court’s finding on that issue was that “the collateral estoppel aspect of res judicata operates to prevent Barker from raising in her motion for sanctions the issues regarding Watkins soliciting and retaining McQuiggan as a client.” But the court did not mean the sanctions motion had to ignore the sequence of events which led to filing the bad-faith venue motion. Stated another way, even though the court did not allow the solicitation and retention of McQuiggan to form the basis for the sanctions award, it could still consider the history and background of the relationship between the parties.
The record demonstrates that-after Barker became minor’s counsel for Justin Oleesky, the son of Watkins’s client, Steven Oleesky-Watkins, or persons under his direction, undertook to locate McQuiggan and encourage him to initiate action against Barker in the family law case. Although the motion for change of venue was ostensibly made to obtain a neutral forum for a hearing on child support reduction, the evidence strongly supports that the real purpose for the motion was to harass Barker and cause her to stop representing Justin. As described by the trial court in its 2007 statement of decision: “Filing a frivolous motion and requiring Barker to spend time and money defending against it is more designed to vex her....” The trial court commented expressly that it found Watkins’s testimony that he acted in good faith less credible than the testimony of McQuiggan and Golding, the attorney affiliated with Watkins. The court determined that Watkins’s solicitation of McQuiggan was the conduct that led directly and indirectly to the wrongful filing of the venue motion and related actions between the parties. As such, substantial evidence supports the trial court’s exercise of its discretion in awarding sanctions against Watkins.
We also reject Watkins’s contention that the court did not sufficiently articulate the findings that were the basis for its sanctions order. In Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 995-996, the court disapproved of a summary order, while commenting “no more is required than a written factual recital, with reasonable specificity, of the circumstances that led the trial court to find the conduct before it sanctionable under the relevant code section. [Citation.] This means the court’s written order should be more informative than a mere recitation of the words of the statute. [Citations.] Recitation of the facts justifying a sanctions order fulfills the rudiments of due process in two ways. First, the recitation requirement ensures the power conferred by statute will not be abused. Second, in some cases the court’s recitation will be an invaluable aid to a reviewing court in determining whether the trial court abused its discretion in awarding sanctions. This purpose is equally served whether the court itself prepares the order, directs counsel to do so, or simply incorporates some specific portion of a party’s papers. [Citations.]”
The record in this case demonstrates that, over the course of more than 12 years of hearings, the trial court prepared two detailed statements of decision, one of which was 27 pages long and one of which was nine pages long. It is entirely implausible of Watkins to argue he does not understand the basis for the award of sanctions or that this reviewing court cannot perform an abuse of discretion analysis. The trial court clearly found the motion for change of venue was made in bad faith for its reasons articulated in the two statements of decision.
V
DISPOSITION
Although reverse sanctions are mentioned three times in the record, no evidence was presented on this issue and we decline to entertain it on appeal.
We affirm the judgment of the trial court. Respondent is awarded her costs on appeal.
We concur: Ramirez P. J., Hollenhorst J.