Marriage of Critzer CA6

Filed 4/11/23 Marriage of Critzer CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re Marriage of MARGARET and H049072, H049187
DAVID E. CRITZER. (Santa Clara County
Super. Ct. No. 2013-6-FL011468)

MARGARET L. CRITZER,

Respondent,

v.

DAVID E. CRITZER,

Appellant.

These are the fifth and sixth appeals arising out of the dissolution of appellant
David E. Critzer’s marriage to respondent Margaret L. Critzer. David now appeals
multiple postjudgment orders mandating the sale of the marital house and levying
sanctions against him. Because the house was sold in February 2021, we determine that
the appeal of the order mandating its sale is moot. We also determine that the trial court
did not abuse its discretion in issuing the sanctions and we therefore affirm those orders.
 I. FACTUAL AND PROCEDURAL BACKGROUND1
A. Status-only judgment of dissolution – February 2015
David and Margaret married in 1986. In November 2013, Margaret petitioned for
dissolution of marriage. In September 2014, she requested that the court bifurcate the
issue of the dissolution of the status of marriage.2 To facilitate resolution of various
issues—including property division, support, and reimbursement claims—the parties
stipulated to a separation date of October 11, 2014. A status-only judgment of
dissolution was then entered on February 3, 2015. In case No. H042214, this court
affirmed that judgment, as modified.
B. Judgment on reserved issues – January 2018
The reserved issues were set for trial in May 2017. However, the parties reached a
judicially supervised settlement of some of the issues, including property division,
reimbursement claims, spousal support for David, and attorney fees. Specific other
issues remained for resolution, including the possible sale of the marital house.
On January 12, 2018, following Margaret’s motion to enforce the settlement
pursuant to Code of Civil Procedure section 664.6, the trial court entered a judgment on
reserved issues, which included division of property between the parties. Pursuant to that
judgment, David and Margaret would each receive a one-half interest in the net sale
proceeds of the marital house on Marigold Court in Mountain View (Marigold).

1 We draw the facts recited here in part from our opinions in David’s prior appeals,
Critzer v. Critzer (Dec. 21, 2018, H042214 [nonpub. opn.]) (case No. H042214); Critzer
v. Critzer (Dec. 26, 2019, H045527 [nonpub. opn.]) (case No. H045527); and Critzer v.
Critzer (Mar. 11, 2022, H047809 [nonpub. opn.]) (case No. H047809), where they are set
forth more fully. On our own motion, we take judicial notice of our prior opinions.
(Evid. Code, §§ 452, subd. (d), 459.)
2 Family Code section 2337, subdivision (a), provides that “[i]n a proceeding for
dissolution of marriage, the court, upon noticed motion, may sever and grant an early and
separate trial on the issue of the dissolution of the status of the marriage apart from other
issues.”

2
Among other things, the judgment on reserved issues provided: “The parties have agreed
that Marigold shall be sold and the net sale proceeds after costs of sale will be divided
equally. [¶] The parties will have to sort out [the] details regarding exactly when and how
Marigold will be sold. If there is a dispute, the court shall reserve jurisdiction to resolve
those disputes if the parties and counsel cannot agree at a future date.” It further
provided that David would continue to “occupy[]” Marigold pending its sale.
David appealed the judgment on reserved issues in case No. H045527. This court
rejected his arguments that the family court erred in entering the judgment while there
remained unresolved issues over material terms such as postseparation expenses and
spousal support. After the remittitur issued on February 24, 2020, Margaret filed a
request for an order of appellate attorney fees as sanctions on April 2, 2020, in which she
sought $87,560. The hearing on that request was held on August 20, 2020, after which
the trial court awarded $55,000 to Margaret.3
C. Order mandating sale of Marigold – October 2020
In July 2020, Margaret filed a request for an order enforcing the judgment on
reserved issues. According to her, David had refused to cooperate in the division of
certain assets, including listing and selling the Marigold house. She claimed he was
using the Covid pandemic “to indefinitely prolong his time at Marigold , denying me my
use of the sale proceeds causing me economic detriment.” Margaret’s attorney had
e-mailed David on February 24, 2020, stating that “Margaret wants to immediately take
steps to have the Marigold house listed and sold. We think a listing on April 7, 2020
would be appropriate.” After some initial participation and progress preparing the
property for listing, David stated via e-mail on April 19, 2020, that the Covid
shelter-in-place orders prevented them from selling the house.

3 Additional facts relevant to this award of fees are included below in the section
discussing David’s appeal of the award.

3
 The parties exchanged additional e-mails regarding the sale of Marigold over the
next two weeks. Margaret’s attorney reiterated that Margaret “WANTS IT SOLD,
NOW” and “is not willing to wait for some indeterminate [amount] of time until you
decide you’re ready to move. That will never happen. Again, the Judgment is clear.
Marigold is to be sold. Nothing in the Judgment permits you to delay the sale of the
property . . . for any reason, lockdown or not, quarantine or not, market downturn or not.
Period.”
According to Margaret, David’s “track record” and statements in his e-mails
“make it clear that he has no intention of listing Marigold.” She added that,
“[u]nfortunately, despite the court’s clear orders in the Judgment requiring Marigold to
be sold, the state’s [shelter-in-place] [o]rders have temporarily denied me a remedy and
essentially permitted David to seize control of my life and my finances.”
Margaret requested that the court order Marigold to be “immediately listed and
sold”; Grant Walters to be appointed as the listing agent and David to be required to sign
the listing agreement within 48 hours, or to allow the court clerk to sign in his stead; the
house to be listed for $3 million, or at a price recommended by Walters; David to vacate
Marigold within 30 days of entry of the order; and attorney fees as sanctions.
David opposed the request for an order to sell Marigold. He argued that there
were “unresolved issues regarding the terms of spousal support and the payment of
housing-related expenses with community property,” which left “major portions of the
settlement unknown.” He claimed the court must resolve those issues before proceeding
further with property division or considering Margaret’s motion for the sale of the house.
The court heard the matter on October 1, 2020. It granted the request and ordered
that “the home shall be listed for sale. [Margaret’s] selling agent will be the listing agent.
[¶] [David] will remain in the house and is to cooperate with selling the home.” The
court also granted Margaret’s request for sanctions for $8,500.

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 D. Marigold listing and purchase agreement – October 2020-January 2021
David then signed the listing agreement on October 12, 2020. On November 13,
2020, the house was ready to be listed. However, David did not respond to requests from
Walters to provide approval to list it, so it was not listed that day. On November 14,
2020, Margaret e-mailed David, stating that if, by that afternoon, he had not selected a
date to list the house, she would file an ex parte application the next court day to obtain
an order for the house to be listed.
On November 18, 2020, David agreed to list Marigold, and the house was listed
for sale at $3.35 million. By November 23, 2020, Walters had received two offers over
the listing price. After initially stating that he would accept the higher offer for $3.5
million, David refused to accept it as scheduled on November 23, 2020. Margaret’s
attorney e-mailed David that day, stating that there was “no excuse” for his refusing to
accept a $3.5 million offer “with no contingencies and 30 day free rent back” to David.
She added that, if he did not accept the offer, Margaret would file an ex parte application
asking the court to enforce the order and force the sale.
The next day, David agreed to accept the offer and the parties signed the purchase
agreement for $3.525 million. The purchase agreement provided that escrow would close
on January 8, 2021. Shortly before that date, the buyer requested an extension to
January 21, 2021, due to delay by the lender in conducting a second appraisal of the
house, following the unexpected death of the previous appraiser in December 2020.
Margaret agreed to the extension, but David did not. On January 6, 2021, he e-mailed
Margaret and her attorney, stating, “I don’t have the ability to get a mortgage for a new
residence and the sale needs to be terminated now.” According to David, “I hesitated to
agree to such an extension because I was now aware of the problem of obtaining a
mortgage for a residence purchase and knew that I had been placed in a bad spot to obtain
a new residence and transition my business smoothly to that residence.”

5
 Instead of agreeing to the extension, David requested that Walters issue a
“Demand to Close Escrow,” or advise him if it could not be done. David stated, “I want
escrow closed by January 8th as scheduled and will hold firm to that unless I receive
information that conflicts with what I have received so far, which is that I will not be able
to obtain a mortgage from any major lender to purchase a new residence with a pending
divorce proceeding ongoing.”
Margaret did not agree to sign a Demand to Close Escrow. She told David, “[y]ou
are not the sole owner of the house, and you have told the judge on record that you would
cooperate with the selling of the house. A demand to close is NOT cooperating with
selling the house. You either sign the extension or I will ask [my attorney] to submit
paperwork for the court to sign on your behalf.”
Walters stated that he would not proceed with the Demand to Close without
Margaret’s approval. Because he had inconsistent instructions, Walters was not
comfortable taking action at that time.
Later that day, David sent a letter to Walters purporting to terminate him as his
real estate agent. David also e-mailed the buyer’s agent, informing her that he had
terminated Walters, did not agree to an extension, and demanded that they close escrow.
Margaret’s attorney responded to David, stating that “[t]he Demand to Close you
sent the Buyer was without legal force or effect because Margaret did not join you in the
demand. Your alleged termination of Mr. Walters’ service is likewise without legal force
or effect because Margaret did not join it and there is a court order designating Mr.
Walters as Marigold’s listing agent.” She added that if David did not sign the documents
to complete the sale, Margaret would file an ex parte application with the court for an
order to have the clerk sign all necessary documents on his behalf. On January 10, 2021,
Margaret e-mailed David again, asking him if he will sign the papers to close the sale that
week; if not, she would file the ex parte application.

6
 On January 22, 2021, Walters e-mailed Margaret and David to inform them that
the second appraisal had been completed and the buyer was ready to close the sale on
January 29, 2021. David responded by saying that he would not sign the closing papers
because he considered the purchase contract void, as the buyer had not performed under
the Demand to Close Escrow he had sent them prior to the closing date, and because he
had not agreed to the buyer’s requested extension of time to close. He stated that the
buyer had not performed under the original purchase agreement, or even under the
proposed extension of time, and had not circulated an additional extension request.
According to David, “[a]t this point, the terms of the purchase contract have not been
timely fulfilled.”
E. Order requiring David to close escrow – January-February 2021
Margaret then submitted an ex parte application on January 25, 2021,
summarizing the events described above, and seeking an order requiring David to sign
the escrow closing documents or to have the court clerk sign in his stead. She also
requested that the court order David to vacate Marigold after the 30-day rent back period
that had been included in the purchase agreement, and that it levy sanctions.
Margaret cited “exigent circumstances” which she claimed justified the need for
ex parte relief. She explained that “David has refused throughout these proceedings to
cooperate with and facilitate Marigold’s sale, he has engaged in numerous actions
intended to sabotage Marigold’s sale and discourage and scare away a Buyer who is
willing to pay $3,525,000, $175,000 more than our asking price of $3,350,000.” Because
the buyer wanted to close the sale on January 29, 2021, and David was refusing to
execute the closing documents, “once again jeopardizing Marigold’s sale,” Margaret
feared the buyer would walk away if the court did not step in on an urgent basis to
complete the sale.
David opposed the application and asked the court instead to declare the purchase
agreement void and “suspend the home sale until the proceeding is completed and

7
[David] is not in medical debt collection so that [he] can qualify for a mortgage to
purchase a replacement residence.” He stated in a declaration that he had worked
diligently with Walters to prepare Marigold for sale during October and November 2020;
had begun searching for a new home to purchase after Marigold went into contract, but
was unable to obtain a mortgage; and had refused to agree to the buyer’s requested
extension because of the difficulties in obtaining a mortgage and new residence and
smoothly transitioning his in-home business.
David also filed a memorandum of points and authorities in opposition to
Margaret’s ex parte application on January 29, 2021. He argued that in addition to
denying Margaret’s request, the court should suspend its October 1, 2020 order for sale of
Marigold “until this proceeding is concluded and he is able to obtain financing to
purchase a new residence following the sale of Marigold since his inability now to obtain
a mortgage to purchase a new residence will severely disrupt his small business as an
insurance agent and creates an undue hardship on [him].”
The trial court granted Margaret’s application on February 1, 2021. The court’s
“temporary (ex parte) emergency orders” included the following: “[David] shall accept
the Purchase Contract signed by [Buyer] and sign the Escrow Closing Documents
attached to [Margaret’s] Request for Order as Exhibit B, including an Addendum
allowing an extension to close the escrow to January 29, 2021. [¶] . . . If [David] fails to
sign the Escrow Closing Documents, the Clerk of the Superior Court shall be authorized
to sign the Escrow Closing Documents in his place. [¶] . . . [David] shall make the
Marigold Property available for a final ‘walk-through’ by the Buyer prior to escrow
closing. [¶] . . . [David] shall vacate Marigold after the expiration of a thirty-day rent
back period per the terms of the Purchase Contract and Escrow Closing Documents.”
The court also set a hearing for February 16, 2021, for “enforcement of order re sale of
family residence; court to sign escrow closing papers; sanctions.”

8
 On February 1, 2021, Margaret’s attorney informed David that the court had
entered the temporary emergency orders earlier that day and she asked whether he would
comply and sign the escrow documents. David did not agree to sign and instead offered
to buy out Margaret’s half of Marigold. He objected to the ex parte application and
insisted that they wait until the hearing set for February 16.
On February 2, 2021, David also filed a notice of appeal, in which he purported to
appeal the February 1, 2021 temporary emergency orders, as well as the earlier sanctions
orders from October 1 and August 20, 2020 (H049187). He explained to Margaret and
her attorney that his appeal was an additional reason he would not be signing the escrow
documents, despite the trial court’s order.
On February 4, 2021, Margaret and her attorney took the escrow closing
documents to the superior court, where the clerk signed them in David’s stead. The
escrow closed and the deed subsequently recorded on February 11, 2021.
Meanwhile, on February 9, 2021, David had filed an ex parte application for an
order staying the court’s February 1, 2021 temporary emergency orders, or fixing an
undertaking pursuant to Code of Civil Procedure section 917.4 to stay the matter pending
his appeal. The next day, Margaret filed an opposition and the court denied David’s ex
parte request, setting the matter for hearing on March 16, 2021.
The hearing on what remained of Margaret’s February 1, 2021 ex parte application
was held on February 16, 2021. Margaret’s attorney represented to the trial court that
escrow had closed and the deed had recorded. She requested that the court renew the
temporary emergency order requiring David to vacate Marigold within 30 days of
closing, explaining that Margaret was concerned he would not vacate, absent a renewed
order. The court declined to issue a new order because the purchase agreement itself
required David to vacate the house 30 days after closing. The court asked David,
“[t]here’s not going to be any issue with that; right?” to which David replied, “Right.”
Margaret’s request for sanctions was continued to be heard at the March 16 hearing.

9
 F. Order requiring David to vacate Marigold – March 2021
On March 10, 2021, David e-mailed the buyer’s agent, informing her for the first
time that he would not be vacating the house by the 30th day, March 13. After receiving
a copy of the e-mail from the buyer’s agent, Margaret’s attorney informed David that she
would be filing an ex parte application that day for an order requiring David to vacate the
house within 72 hours, or alternatively for an order shortening time for the matter to be
heard at the scheduled March 16 hearing, and for sanctions.
Margaret submitted the ex parte application on March 11, 2021. She claimed
David had “again failed to comply with existing orders and arrangements and now
refuses to move out of the Marigold property even after telling the court he would
voluntarily move out.” According to Margaret, “[i]f this goes unchecked, [David] will (if
he hasn’t already) subject me to immeasurable liability if Buyer sues [David] and me for
breach of contract.” She asked the trial court to order David to vacate Marigold within
72 hours, or alternatively for an order shortening time for the matter to be heard at the
scheduled March 16 hearing, and for sanctions.
At the March 16, 2021 hearing, the trial court ordered David to vacate Marigold
within 72 hours, “including all your personal items, all your furniture and any personal
effects.” The court stated to David, “You looked me in the eye, and you told me you
were going to be out of that house so it wouldn’t interfere with the contract. And it
seems like you’re doing everything you can do to sabotage moving forward with your life
and dividing the property fair and equitably under the Family Code.” The court also
ordered that David pay $19,000 in sanctions in connection with Margaret’s February 1,
2021 request for orders and sanctions, and set a subsequent hearing for March 30 for
Margaret’s request for sanctions in connection with her March 11, 2021 request.
At that hearing on March 30, 2021, David confirmed that he had moved out of the
house. The trial court then awarded further sanctions for $2,400.

10
 David filed his second notice of appeal on April 19, 2021, in which he purported
to appeal: (1) the February 16, 2021 final ex parte order for home sale and final order
certifying a settled statement; (2) the March 4, 2021 order for division of home sale
proceeds; (3) the March 16, 2021 orders for him to vacate the residence, for Family Code
section 271 sanctions, and for execution of a transfer deed to the couple’s “Cupertino
townhome”; and (4) the March 30, 2021 orders for Family Code section 271 sanctions
and to execute the deed to the “Cupertino townhouse” (H049072).4
This court ordered the two appeals—H049072 and H049187—to be coordinated
for purposes of record preparation, briefing, oral argument and disposition.
II. DISCUSSION
David presents three arguments on appeal: (1) the trial court should have denied
Margaret’s ex parte application for an order requiring him to sign the closing documents
because there was no emergency or irreparable harm, and because the purchase
agreement had expired and was therefore void; (2) this court should “restore [his]
property rights” to Marigold; and (3) David did not receive proper notice of some of
Margaret’s sanctions requests and the trial court abused its discretion issuing the
sanctions.
Margaret argues that the trial court did not abuse its discretion ordering David to
sign the closing documents because she demonstrated irreparable harm and the purchase
agreement was not void, and in any event, David’s appeal of the court’s order is moot
because Marigold has been sold. She also argues that David received proper notice of the
sanctions requests and the trial court did not abuse its discretion issuing the sanctions.

4David did not address all of these orders in his briefing on appeal. We consider
those challenges forfeited. (Bains v. Moores (2009) 172 Cal.App.4th 445, 455 [appellate
review is limited to issues which have been adequately raised and briefed] (Baines).)

11
 As we explain below, we agree with Margaret that David’s appeal of the trial
court’s order requiring him to sign the closing documents is moot. We also agree with
Margaret that David received proper notice and the trial court did not abuse its discretion
issuing the sanctions.
A. Applicable law and standard of review
“A court will not grant ex parte relief ‘in any but the plainest and most certain of
cases.’ ” (People ex rel. Allstate Ins. Co. v. Suh (2019) 37 Cal.App.5th 253, 257, quoting
Consolidated Const. Co. v. Pacific E. Ry. Co. (1920) 184 Cal. 244, 246; People ex rel.
Harris v. Rizzo (2013) 214 Cal.App.4th 921, 951.) “For this reason, the rules governing
ex parte applications in civil cases require that ‘[a]n applicant . . . make an affirmative
factual showing . . . of irreparable harm, immediate danger, or any other statutory basis
for granting relief ex parte.’ ” (Allstate, supra, at p. 257, quoting Cal. Rules of Court,
rule 3.1202(c); Webb v. Webb (2017) 12 Cal.App.5th 876, 879.) We review a trial
court’s order granting ex parte relief for an abuse of discretion. (Allstate, supra, at
p. 257.)
With respect to mootness, “California courts will decide only justiciable
controversies.” (Wilson & Wilson v. City Council of Redwood City (2011) 191
Cal.App.4th 1559, 1573 (Wilson), citing County of San Diego v. San Diego NORML
(2008) 165 Cal.App.4th 798, 813.) “Justiciability thus ‘involves the intertwined criteria
of ripeness and standing. A controversy is “ripe” when it has reached, but has not passed,
the point that the facts have sufficiently congealed to permit an intelligent and useful
decision to be made.’ ” (Wilson, supra, at p. 1573, quoting California Water &
Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22 (California
Water).) “[A] case that presents a true controversy at its inception becomes moot ‘ “ ‘if
before decision it has, through act of the parties or other cause, occurring after the
commencement of the action, lost that essential character.” ’ ” (Wilson, supra, at p. 1573,
quoting Wilson v. L.A. County Civil Service Com. (1952) 112 Cal.App.2d 450, 453.)

12
 “The pivotal question in determining if a case is moot is therefore whether the
court can grant the plaintiff any effectual relief.” (Wilson, supra, 191 Cal.App.4th at
p. 1574, citing Giles v. Horn (2002) 100 Cal.App.4th 206, 227.) “If events have made
such relief impracticable, the controversy has become ‘overripe’ and is therefore moot.”
(Wilson, supra, at p. 1574, citing California Water, supra, 253 Cal.App.2d at pp. 22-23,
fn. 9.)
We review a trial court’s decision to issue sanctions pursuant to Family Law Code
section 271 for an abuse of discretion. (In re Marriage of Corona (2009) 172
Cal.App.4th 1205, 1225.)

B. David’s appeal of the trial court’s order requiring him to sign the closing
documents is moot (H049187)
As summarized above, escrow closed and the Marigold deed was recorded in
February 2021. Because we cannot grant any effective relief, David’s appeal of the trial
court’s order requiring the escrow documents to be signed is moot. (Wilson, supra, 191
Cal.App.4th at p. 1574.)
Margaret argues this case is analogous to First Federal Bank of California v.
Fegen (2005) 131 Cal.App.4th 798. In that case, First Federal Bank of California
obtained an order from the trial court mandating the sale of Fegen’s house. Fegen
appealed that order but did not post an undertaking and the house then sold pursuant to
the order. The Court of Appeal dismissed the appeal as moot. As it explained, Code of
Civil Procedure section 917.4 provides that perfecting an appeal of a judgment or order
which directs the sale of real property “ ‘shall not stay enforcement of the judgment or
order . . . unless an undertaking in a sum fixed by the trial court is given . . . .’ ” (Fegen,
supra, at p. 800, quoting Code Civ. Proc., § 917.4.) Because Fegen had failed to post the
undertaking, the order appealed from had not been stayed; accordingly, the court could
not “fashion any order which would have the effect of reversing the trial court’s order of

13
sale or otherwise preventing the sale of the [p]roperty, an event which has already
occurred.” (Fegen, supra, at p. 854.)
We agree with Margaret that the case is analogous and compels the same result
here with respect to David’s appeal of the trial court’s order requiring the closing
documents to be signed. Because David did not post an undertaking, the order was not
stayed and the house was sold pursuant to the order. (See also City of Riverside v.
Horspool (2014) 223 Cal.App.4th 670, 685 [issue was moot because sale of real property
became final due to failure to obtain undertaking to stay trial court proceedings].)
David does not address Fegen. Instead, he contends that this court should
“restore” his property rights to Marigold. However, he does not identify any authority for
this court to take such an action after the sale to a third party has already been completed.
We need not determine when an appellate court may have such power because we deem
the argument forfeited on that point. (Bains, supra, 172 Cal.App.4th at p. 455.)
David argues that he attempted to post an undertaking but that the trial court
refused to fix the amount, thereby precluding him from posting it and preventing a stay.
David contends that, pursuant to Code of Civil Procedure section 917.4, the trial court
was required to fix the amount of the undertaking upon request—that is, it “did not have
[the] discretion to fail to fix any undertaking whatsoever.”
However, even if the trial court had a ministerial duty to fix an undertaking upon
request and failed to do so—an issue we do not decide—David’s remedy was to seek a
writ of mandamus compelling the trial court to act. (Hinkel v. Crowson (1920) 182 Cal.
68, 69; Cal. Prac. Guide Civ. App. & Writs Ch. 7-C [“If the trial court refuses to fix the
amount of security, appellant’s sole remedy is to petition the court of appeal for a writ of
mandate compelling the trial court to act.”].) David did not seek that remedy here. 5

We therefore reject David’s argument that “there [was] nothing more [he] could
5

have done to prevent the sale of the home.”

14
 David also argues that, if we determine his appeal on this issue is moot, we should
nevertheless consider the argument on the merits pursuant to an applicable exception. A
reviewing court has the discretion to consider a moot appeal under three exceptions:
(1) the case presents an issue of broad public interest that is likely to recur; (2) the
parties’ controversy may recur; and (3) a material question remains for the court’s
determination. (Cucamongans United for Reasonable Expansion v. City of Rancho
Cucamonga (2000) 82 Cal.App.4th 473, 480.) David contends that the first of these
exceptions applies here. As he explains it, this issue “is not uncommon in that the Court
is working with two divorcing parties that cannot reach agreements on the division of
their real property.” However, David cites no authority or evidence suggesting that this is
a common occurrence. (See Sturgell v. Department of Fish & Wildlife (2019) 43
Cal.App.5th 35, 47 [party could not identify any other similar instances in support of
argument that issue was likely to recur].)
Instead, he warns that determining his appeal on this issue to be moot would mean
that trial courts “could simply make orders on ex parte papers alone, without hearings,
that certain things be done the very next day, and then proverbially shrug their shoulders
that the complaint is ‘moot’ when damaged parties seek to challenge or appeal or
otherwise protect their rights.” We do not believe our courts would be so cavalier in
exercising their duty to ensure the proper and orderly administration of justice. And
where errors may occur, litigants have remedies available to them, which sometimes
require prompt or immediate action to preserve them.
Lastly, even if the appeal were not moot, we would find that the trial court did not
abuse its discretion in ordering that the escrow documents be signed. David argues there
was no irreparable harm or imminent danger justifying ex parte relief. However,
Margaret submitted evidence in support of her ex parte application which she claimed
demonstrated “exigent circumstances” that warranted such relief. For example, as
summarized above, she explained that David was “once again jeopardizing Marigold’s

15
sale,” and she feared the buyer would walk away if the court did not step in on an urgent
basis to complete the sale. David does not address this evidence on appeal; in light of
that evidence and the history of the dissolution proceedings, we would determine the trial
court did not abuse its discretion granting the ex parte relief.
David also argues that ex parte relief was improper because the purchase
agreement had expired and was void. However, he ignores the fact that the parties signed
an addendum providing an extension to close the escrow to January 29, 2021. In
addition, the trial court had previously ordered Marigold to be sold, and it had broad
discretion under the Family Code to fashion orders enforcing its family law judgments,
even if the original purchase agreement had expired. (Cal-Western Reconveyance Corp.
v. Reed (2007) 152 Cal.App.4th 1308, 1318; Fam. Code, § 290.)
C. The trial court did not abuse its discretion awarding sanctions
David contends that he did not receive proper notice of (1) Margaret’s requests for
sanctions for appellate attorney fees related to case No. H045527, which resulted in
$55,000 in sanctions, or (2) Margaret’s request for sanctions related to her February 1,
2021 ex parte application, which resulted in $19,000 in sanctions. He also argues that,
even if notice was proper, the trial court abused its discretion in issuing those sanctions,
as well as the $8,500 related to Margaret’s July 2020 request for an order mandating the
sale of Marigold, and the $2,400 related to her March 11, 2021 ex parte application for an
order requiring David to vacate Marigold, all pursuant to Family Code section 271.
1. $55,000 sanctions award (H049187)
David argues he did not receive proper notice of Margaret’s request for appellate
sanctions because Margaret did not serve the motion “in its entirety” within the time
period mandated by California Rules of Court, rule 3.1702(c)(1). That rule provides: “A
notice of motion to claim attorney’s fees on appeal—other than the attorney’s fees on
appeal claimed under (b)—under a statute or contract requiring the court to determine
entitlement to the fees, the amount of the fees, or both, must be served and filed within

16
the time for serving and filing the memorandum of costs under rule 8.278(c)(1) in an
unlimited civil case or under rule 8.891(c)(1) in a limited civil case.” (Cal. Rules of
Court, rule 3.1702(c)(1).) California Rules of Court, rule 8.278(c)(1) provides that a
memorandum of costs must be filed within 40 days of issuance of the remittitur.
Here, the remittitur in case No. H045527 issued on February 24, 2020. The parties
agree that the deadline for filing and serving the notice of motion pursuant to California
Rules of Court, rule 3.1702 was June 15, 2020, in light of the Santa Clara County
Superior Court’s Covid-19 Emergency Relief General Orders. On April 2, 2020,
Margaret electronically filed her request for an order for appellate sanctions, as well as a
memorandum of points and authorities and supporting declarations. The trial court
electronically served the request for order and Margaret’s supporting declaration on
David on May 1, 2020 and May 15, 2020, and set the hearing for August 20, 2020. On
May 15, Margaret’s attorney e-mailed David informing him that Margaret would be
serving three additional declarations with attached redacted billing statements, and the
memorandum of points and authorities, “in due course.” She then served those materials
on David via e-mail on June 26, 2020.
David thus argues that, because he did not receive those additional filings by
June 15, 2020, he did not receive proper notice as required by California Rules of Court,
rule 3.1702(c)(1). We disagree. First, as Margaret notes, rule 3.1702(c)(1), provides
only that the “notice of motion” must be filed and served within the applicable time
period. It does not provide that all moving and supporting papers must be filed and
served within that time period. (Cal. Rules of Court, rule 3.1702(c)(1).) By contrast,
Code of Civil Procedure section 1005 provides that, “[u]nless otherwise ordered or
specifically provided by law, all moving and supporting papers shall be served and filed
at least 16 court days before the hearing.” (Code. Civ. Proc., § 1005, subd. (b).) David
has not cited any authority supporting his interpretation of rule 3.1702 that “notice of
motion” necessarily includes all moving and supporting papers.

17
 Second, even if “notice of motion” in California Rules of Court, rule 3.1702 could
be construed to include all supporting papers, David has not identified or even alleged
any prejudice resulting from being served with the additional supporting papers on
June 26. We can discern none.
David then argues that, even if notice was proper, the trial court abused its
discretion awarding $55,000 in appellate attorney fees sanctions because the trial court
“made no findings regarding the appellate litigation that occurred, or the merits or lack,
or reasonableness or lack, thereof,” and made no findings that his appeal “constituted
sanctionable conduct under Family Code section 271.” As he explains it, “the Trial Court
completely failed to make any findings articulating what about David’s conduct was
Section 271 sanctionable in the first place.”
The record demonstrates otherwise. The trial court’s findings explained that the
court reviewed Margaret’s request for order and supporting filings, other relevant filings
going back to 2017, the response and reply briefs, and oral arguments made at the
hearing, and found that David’s conduct “frustrated the policy of the law to promote
settlement, and where possible, reduce the cost of litigation by encouraging cooperation
between the parties and/or attorneys.” The court further found that David had the ability
to pay the reasonable sanctions, and that the award did not impose an unreasonable
financial burden.
To the extent David contends these findings were not sufficiently detailed, he has
not identified any authority supporting that contention. Nor has he addressed the
substantial evidence in the record supporting the trial court’s findings, including the
materials the court expressly stated it reviewed and relied on. Although a Court of
Appeal reviews findings of fact that formed the basis for an award of sanctions under the
substantial evidence standard of review, we need not undertake that review here because
David has forfeited the argument by not including any citations to the record or

18
supporting authority. (In re Marriage of Corona, supra, 172 Cal.App.4th at
pp. 1225-1226; Bains, supra, 172 Cal.App.4th at p. 455.)
2. $19,000 sanctions award (H049072)
David argues he did not receive sufficient notice of the $19,000 in sanctions
granted at the March 16, 2021 hearing. He contends that, although Margaret’s
February 1, 2021 ex parte application had included an unspecified request for
“sanctions,” nothing informed him “what amount of sanctions was requested against him,
under what legal theory, for what alleged conduct.” Accordingly, he argues, the generic
request for sanctions was “legally insufficient” to provide him adequate notice of
Margaret’s request or to allow him an opportunity to properly respond.
As a threshold matter, we note that David does not appear to have raised this
argument below, and he has thus forfeited it. (Amato v. Mercury Casualty Co. (1993) 18
Cal.App.4th 1784, 1794 [“It must appear from the record that the issue argued on appeal
was raised in the trial court. If not, the issue is waived.”]; City of San Diego v. D.R.
Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 685 [contentions or
theories raised for the first time on appeal are not entitled to consideration].) David has
not pointed to any evidence in the record showing that he objected to the notice provided,
including at the hearing on March 16, 2021.
Even if he had preserved his right to raise the argument on appeal, it has no merit.
Family Code section 271 “does not specify the form of notice to be provided.” (In re
Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1529 (Davenport).) Instead, “ ‘the
only procedural requirement’ is ‘ “notice to the party against whom the sanction is
proposed to be imposed and opportunity for that party to be heard.” ’ ” (Ibid., quoting In
re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1495.)6

6Family Code section 271, subdivision (b), provides: “An award of attorney’s
fees and costs as a sanction pursuant to this section shall be imposed only after notice to
(continued)

19
 In Davenport, the court rejected an argument that the notice was insufficient
because it failed to give notice of what the husband was seeking and did not set forth the
precise amount he was seeking. (Davenport, supra, 194 Cal.App.4th at p. 1528.) The
court held that the notice at issue “more than measured up,” where it had been labeled
“ ‘Respondent’s Notice of Intention to Request Attorney Fees and Costs Pursuant to
Family Code Section 271,’ ” and included a supporting declaration. As the court
explained, “it is obvious from the title of the notice that [husband] was requesting
attorney fees under section 271. This is sufficient.” (Id. at p. 1529, citing Levy v. Blum
(2001) 92 Cal.App.4th 625, 638 [notice must specify the code section or court rule relied
on].) The court added that “[t]he notice must also advise of the specific grounds and
conduct for which the fees or sanctions are sought, and must be directed to the specific
person against whom they are sought.” (Davenport, supra, at p. 1529, citing In re
Marriage of Quinlan (1989) 209 Cal.App.3d 1417, 1421-1422.)
Applying these standards here, we determine Margaret’s notice was sufficient. In
support of her February 1, 2021 ex parte application, Margaret submitted a detailed
declaration setting forth the grounds for her request. For instance, she explained that,
“Bringing Marigold to the brink of sale has been a long and arduous task. After signing a
listing agreement with Grant Walters, readying the property for sale, listing the property
(under threat of an ex parte), showing the property, accepting an offer (under threat of an
ex parte), as more fully explained below, David has refused throughout these proceedings
to cooperate with and facilitate Marigold’s sale, he has engaged in numerous actions
intended to sabotage Marigold’s sale and discourage and scare away a Buyer who is
willing to pay $3,525,000, $175,000 more than our asking price of $3,350,000. . . . [¶]
Now David refuses to execute the escrow closing papers, once again jeopardizing

the party against whom the sanction is proposed to be imposed and opportunity for that
party to be heard.”

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Marigold’s sale.” Margaret also filed a supplemental declaration and income expense
declaration on March 3, in advance of the March 16 hearing on her request for sanctions. 7
David cannot plausibly contend that he did not have sufficient notice of the grounds on
which Margaret’s request was based. (Davenport, supra, 194 Cal.App.4th at p. 1529.)
David then argues that, even if proper notice was provided, the trial court abused
its discretion awarding the $19,000 in sanctions because “Margaret never specified how
much she was requesting in sanctions in her pleadings, nor under what theory, [nor] what
conduct allegedly warranted sanctions, nor how much she incurred in attorney fees due to
that conduct.” For the same reasons set forth above with respect to the notice that was
provided, the record contradicts those assertions.
3. $8,500 sanctions award (H049187)
With respect to the $8,500 sanctions award related to the order mandating the sale
of Marigold, David argues that the trial court “made no findings regarding David’s
conduct in support of Family Code section 271 sanctions [or] regarding David’s ability to
pay an award of sanctions or that an award would not constitute a financial hardship or
unreasonable financial burden.” Margaret concedes that the trial court did not make any
written findings in connection with that order, which she attributes to the trial court’s
limited operations during the Covid emergency, the absence of a court reporter at the
October 1, 2020 hearing, and the inability of the parties to agree on the terms of written
findings.
Yet, to the extent David contends that the failure to make such findings requires
reversal of an award of sanctions pursuant to Family Code section 271, he has not cited
any authority for that proposition. Nor are we aware of any. Instead, a sanctions order
under section 271 is reviewed for abuse of discretion and a court of appeal “will overturn

7
At the February 16, 2021 hearing, the parties agreed to continue the hearing on
Margaret’s request for sanctions to March 16.

21
such an order only if, 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.” (In re Marriage of Corona, supra, 172 Cal.App.4th at pp. 1225-1226; see also In
re Marriage of Quay (1993) 18 Cal.App.4th 961, 970 [statute does not require a written
order].) Applying that standard here, we determine the trial court did not abuse its
discretion awarding the $8,500 in sanctions. As Margaret argues, the record contains
ample evidence of David’s resistance to the court-mandated sale of Marigold; viewing
that evidence most favorably in support of the court’s order and indulging all inferences
in its favor, a reasonable judge could have relied on that evidence to award the $8,500 in
sanctions. The trial court did not abuse its discretion.
4. $2,400 sanctions award (H049072)
David argues that the trial court abused its discretion by awarding $2,400 in
sanctions related to Margaret’s March 11, 2021 ex parte application for an order requiring
David to vacate Marigold, because she had only asked for $2,000. According to David, it
was “inherently arbitrary and capricious” for the court to order an amount beyond what
Margaret had requested.
Again, David cites no legal authority in support of his argument. We deem it
forfeited. (Baines, supra, 172 Cal.App.4th at p. 455.)
III. DISPOSITION
David’s appeal of the trial court’s February 1, 2021 order is dismissed as moot. In
all other respects, the appealed orders are affirmed.

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 ___________________________________
Wilson, J.

WE CONCUR:

__________________________________________
Bamattre-Manoukian, Acting P.J.

______________________________________
Danner, J.

Critzer v. Critzer
H049072, H049187