Friday, February 1, 2019
Court of Appeal:
Opinion by Justice Hoffstadt Comes in Context of Woman Seeking Fees as Sanctions From Ex-Husband for His Conduct in Seeking Modification of Child-Custody Orders
By a MetNews Staff Writer
A request for attorney fees as a sanction in a family law case need not be made by a separate motion, but may be sought in a responsive pleading, the Court of Appeal for this district held yesterday.
Div. Two, in an opinion by Justice Brian M. Hoffstadt, declared that this does not contravene the general rule that affirmative relief may not be sought in a responsive pleading.
Hoffstadt noted that the limited exception to that rule, contained in Family Code §213—where a responding party proposes an “alternative to that requested by the moving party”—was inapplicable, but posed the question:
“Is a responding party’s request for sanction-based attorney fees under section 271 a request for ‘affirmative relief’?”
“We conclude that it is not.”
The opinion affirms an order by Los Angeles Superior Court Judge Colin P. Leis imposing a $149,672.12 sanction on Richard Uzelac based on his conduct in seeking child custody modifications. Leis acted pursuant to Family Code §271 which declares:
“An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction.”
It requires “notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard” but does not spell out that a separate noticed motion is required.
‘Attack on Messenger’
The jurist explained why the request for attorney fees as a sanction did not constitute a bid for affirmative relief, saying:
“Where, as here, the bar to seeking affirmative relief in responsive pleadings is intended to keep the modification proceeding focused on the ‘message’ set forth in the moving papers, a responding party seeks affirmative relief only if she seeks to change or expand that message. A party does not change or expand the message—and hence does not seek affirmative relief—if she does no more than defend against the substantive claims made by the moving party.”
“A party… does not change or expand the message—and hence does not seek ‘affirmative relief’—if she seeks redress for the manner in which the moving party delivered the message. Such redress attacks the messenger, not the message. That is why a party seeking costs is not seeking affirmative relief.”
Likewise, Hoffstadt said, a party seeking attorney fees as a sanction, under §271, “is not seeking affirmative relief within the meaning of section 213 because the request for such fees is an attack on the messenger, not his message.”
He added that because imposition of a sanction pursuant to §271 “is necessarily responsive to the moving party’s conduct in litigating his motion, allowing a court to consider the moving party’s conduct at the same time as his motion without the need for a separately filed motion for fees,” promoting efficiency.
Hoffstadt alluded, parenthetically, to Code of Civil Procedure §431.30 which provides: “Affirmative relief may not be claimed in the answer.” He did not discuss whether the proposition contained in his opinion that attorney-fee requests do not constitute efforts to obtain affirmative relief has applicability beyond the context of attorney fees being sought as sanctions under §271.
The case is Perow v. Uzelac, B283457.
Wendy Rossi, of Los Angeles, represented Uzelac, and Agoura Hills practitioner Jeffrey L. Hoffer, acted for the former wife, Catherine Perow.
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