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Court of Appeal:
Litigant Must Pay Sanction Based on Lawyer’s Misconduct
Justices Say Family Code §177.5 Authorizes Monetary Penalty Based on Attorney Causing Rocky Litigation, Also Specifies That Payment Is to Be Made ‘From the Property or Income of the Party’
By a MetNews Staff Writer
The Court of Appeal for this district has held that under the wording of a sanction statute, a litigant was properly held to be vicariously responsible for the conduct of her lawyer.
Div. One on Wednesday affirmed a $9,000 sanction imposed on a party in a family law proceeding based not only on her own unreasonableness but also predicated on rudeness displayed in court by her lawyer, Jaclin Awad of Cerritos.
Justice Gregory Weingart authored the opinion, which was not certified for publication. Joining in it were Presiding Justice Frances Rothschild and Justice Helen I. Bendix.
While affirming the sanction that Los Angeles Superior Court Judge Kenneth M. Fuller ordered litigant Carol Tom to pay under Family Code §271, Div. One reversed a $999 penalty the judge levied against Awad pursuant to §177.5 of that code.
Sec. 271 says, in part, that “the court may base an award of attorney’s fees and costs on the extent to which any conduct of each party or attorney furthers or 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.”
It specifies that “[a]n award of attorney’s fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed.”
Under §177.5, a bench officer has “the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification.” It requires that an “order imposing sanctions shall be in writing and shall recite in detail the conduct or circumstances justifying the order.”
Fuller’s Order
Fuller said in his Dec. 30, 2024 order with respect to the §271 sanction against Carol Tom that the ex-wife had been “unreasonable in her position regarding child custody and visitation” and otherwise engaged in unwarranted conduct. He further declared:
“The court finds that Petitioner’s counsel was openly rude to opposing counsel and the court during the hearing on repeat occasions. She used an aggressive and disrespectful tone throughout. The court finds that Petitioner’s counsel talked over the court on numerous occasions despite being admonished not to do so. At one point, the courtroom bailiff had to intervene to maintain order due to Petitioner’s counsel’s unruly and uncivil behavior. Additionally, during the hearing as to whether sanctions should be imposed.”
The order continues:
“Petitioner’s counsel once again impugned the integrity of the court, and attempted to speak over the court even while appealing remotely. Petitioner’s counsel also misrepresented facts on the record, and at one point had to be muted repeatedly in order to avoid her disrupting an orderly proceeding. Petitioner’s counsel’s behavior was unbecoming a member of the state bar and violates her attorney oath. Petitioner’s counsel exhibited emotional behavior more akin to a pro se litigant than a trained advocate. Simply because a judge rules against a party does not give that party license to engage in courtroom bullying.”
Fuller remarked that “Petitioner and by extension Petitioner’s counsel’s behavior falls squarely within” §271.
He added, without elaboration:
“As to CCP 177.5 sanctions, the court orders Petitioner’s counsel to pay S999. payable to the Los Angeles Superior Court forthwith.”
Carol Tom’s opening brief on appeal asserts:
“It was improper to sanction Carol under section 271 simply for taking litigation positions with which the court disagreed. It was also improper to sanction her because her attorney engaged in impassioned advocacy during the proceeding. Neither of these constitutes a valid ground for section 271 sanctions as a matter of law….
“The court further erred by sanctioning Awad under Code of Civil Procedure section 177.5—a statute specifically designed to sanction violations of court orders—because neither the record nor the court’s findings show that Awad knowingly violated a valid court order. Nor did the court recite in detail the conduct or circumstances justifying imposition of the sanction as required by that statute.”
Sanctions Under §271
Weingart wrote that “[w]here a party’s counsel engages in conduct violative of section 271, that section makes the party and not the attorney financially responsible for the consequences,” citing a footnote in the 2006 Court of Appeal opinion by this district’s Div. Eight in Burkle v. Burkle.
That case concerned the divorce of billionaire entrepreneur Ronald Burkle and Janet Burkle. The matter was presided over, upon stipulation of the parties, by retired Los Angeles Superior Court Judge Stephen M. Lachs.
The footnote says, in relevant part:
“Ms. Burkle…contends sanctions under Family Code section 271 may only be imposed on a party, not on the attorneys. Although she is correct, Judge Lachs’s order did not purport to sanction Ms. Burkle’s attorneys under Family Code section 271.”
Lachs had socked the lawyers, as well as Janet Burkle—based on her knowing participation in blameworthy litigation conduct—with a sanction in the amount of $32,950 connected to the bringing of a lawsuit asserting matters over which the family law court already had jurisdiction. That order was pursuant to Code of Civil Procedure §128.7, one of the general sanction statutes.
The retired judge additionally rendered the $32,950 sanction payable by Janet Burkle pursuant to §271.
Weingart’s opinion goes beyond the parameters of Burkle in holding that an award may be made against a party to a domestic relations proceeding based on misconduct of that person’s lawyer.
Awad’s Conduct
Weingart set forth:
“We…reject Carol’s suggestion that zealous advocacy requires the type of untoward behavior Awad repeatedly demonstrated….Here, the court could reasonably conclude Awad’s incivility and rudeness, which escalated at one point to the bailiff being forced to intervene to maintain order, and at another point during a remote appearance to the court having to order the judicial assistant to mute Awad because of counsel’s constant attempts to speak over the court, went beyond appropriate advocacy and frustrated the policy of promoting settlement by creating an antagonistic environment not conducive to compromise, and also increased litigation costs by distracting the court and parties from the merits of the dispute.”
Finding no merit in Carol Tom’s stance that Fuller retaliated based on being “miffed” at Awad’s “accusation of bias,” the justice said:
“While the court’s order noted that Awad had ‘impugned the integrity of the court,’ nothing in the record suggests the court sanctioned Carol based on a personal reaction to any accusation of bias or that sanctions were not otherwise appropriate regardless of any accusation of bias.”
Inapplicability of §177.5
A sanction was invalidly imposed on Awad pursuant to §177.5, Weingart declared, noting that Fuller had not satisfied the requite of specifying the reasons in detail and in writing and “further failed to identify any valid court order that Awad violated.”
He added that “[w]e in no way condone Awad’s behavior” and remarked that the conduct “was properly sanctioned under section 271.”
The subject of the post-dissolution proceeding was Carol Tom’s request to move from Walnut in Los Angeles County to Chula Vista in San Diego County and bring the couple’s two children with her, which Fuller denied. He also turned down Brandon Tom’s motion to be granted primary custody.
Weingart’s opinion affirms the decisions.
The case is Marriage of Tom, B342764.
Carol Tom’s lawyer on appeal was John T. Sylvester of the San Diego firm of Cage & Miles, LLP. Julia C. Shear Kushner of the Law Office of Leslie Ellen Shear in Encino represented Brandon Tom.
Awad argued on her own behalf.
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