Filed 7/19/23 Velasco v. Vasquez CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
HUMBERTO VELASCO, B312701
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. 20PSFL01321)
STEPHANIE M. VASQUEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Lisa R. Washington, Judge. Affirmed in
part, reversed in part and remanded.
Provinziano & Associates and Alphonse F. Provinziano for
Defendant and Appellant.
Humberto Velasco, in pro. per.; and Walter T. Shatford IV
for Plaintiff and Respondent.
_________________
The family court granted Stephanie M. Vasquez’s motion to
quash service of summons of Humberto Velasco’s
parentage/custody action but denied her request for attorney fees
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under Family Code sections 271 and 7605. On appeal Vasquez
contends the court failed to consider and apply the proper legal
standards for an award of attorney fees under these provisions.
Although reasonably denying attorney fees based on its finding
Velasco’s counsel did not act unprofessionally, the court failed to
consider whether Velasco had acted in bad faith under
section 271 and did not address Vasquez’s request for needs-
based attorney fees under section 7605. Accordingly, we reverse
the order denying attorney fees and remand for the court to make
the findings required by sections 271 and 7605. In all other
respects the order is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. Velasco’s Parentage Action
On September 29, 2020 Velasco, represented by counsel,
filed a section 7630 petition in the superior court to determine
parental relationship and custody of his and Vasquez’s then-four-
year-old daughter Lina. Velasco included with the supporting
papers a form declaration under the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA) in which he averred
that he, Vasquez and Lina had lived together as a family in
La Puente, California, since Lina’s birth in 2016.
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All statutory references are to this code unless otherwise
stated.
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2. Vasquez’s Motion To Quash and Fee Request
In November 2020 Vasquez, through counsel, specially
appeared and moved to quash service of the summons and
complaint. In her supporting declaration Vasquez stated she and
Lina moved to Arizona in August 2019 and had been residents of
Arizona since December 2019; Vasquez and Velasco were not
married and were no longer romantically involved with each
other; and Velasco knew Vasquez and Lina had moved to Arizona
and had even visited Lina in Arizona on several occasions in 2019
and 2020. In addition, Vasquez provided documentary evidence
of her Arizona residency, including her Arizona driver’s license,
confirmation of her mailing address and evidence of Lina’s
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treatment by Arizona physicians.
Vasquez, who has served as Lina’s full-time caregiver since
Lina’s birth, requested attorney fees and costs, citing Velasco’s
bad faith in filing his parentage action in California (§ 721,
subd. (a)). Vasquez also requested attorney fees pursuant to
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section 7605 and included an income and expense declaration
(Cal. Rules of Court, rule 5.427(b)(1)), along with her counsel’s
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Lina was born with cerebral palsy and requires around-the-
clock care.
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In his declaration supporting Vasquez’s request for
attorney fees, Vasquez’s counsel cited section 7605, applicable to
parentage actions, as authority for Vasquez’s attorney fee
request. In the memorandum of points and authorities
supporting that request, however, Vasquez cited section 2030.
Other than the difference in proceedings to which those statutes
apply (section 7605 applies in parentage actions; section 2030 in
dissolution actions), the two statutes are substantively identical.
(Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th 633, 642.)
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supporting declaration in support of her fee request. Counsel’s
declaration identified a little more than $20,000 in attorney fees
and costs “incurred and anticipated.”
3. Velasco’s Opposition to the Motion To Quash and
Request for Attorney Fees
Velasco opposed the motion to quash. In his declaration
submitted with his papers, Velasco stated Vasquez had left
California with Lina in August 2019 for an extended visit with
her family in Arizona, something Vasquez had done in the past.
Velasco insisted Vasquez did not tell him she intended to remain
in Arizona. He only learned of her plans recently when Vasquez
refused to return Lina to California.
Velasco urged the court to deny Vasquez’s request for
attorney fees, arguing she had more than sufficient funds to pay
for her counsel. He and his counsel also insisted they had not
acted in bad faith.
4. The Family Court’s Ruling on Vasquez’s Motion To
Quash and Request for Attorney Fees
The family court granted Vasquez’s motion to quash,
finding Lina had resided in Arizona for more than six months
prior to Velasco’s petition and had been receiving treatment for
her medical issues in Arizona. As to Velasco’s assertion Lina had
resided in La Puente since birth, the court stated, “We know
[based on the undisputed evidence presented] that the minor did
not reside in La Puente until the date [Velasco filed his
parentage petition] because the parties can see that the child was
in Arizona. Now, if the child was there because of a temporary
visit, or the mother did not return [her], that’s a separate issue.”
Turning to Vasquez’s request for attorney fees, the court
stated, “And regarding the issue of attorney’s fees, the court does
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not find that petitioner’s counsel was unprofessional where
sanctions or anything along those lines, should be warranted.
The court is not going to grant attorney’s fees. Each side to bear
[his and her] own costs.” The court made substantially similar
comments in its written findings and order granting Vasquez’s
motion to quash and staying the action pending resolution of the
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then-recent parentage action Vasquez had filed in Arizona. The
court did not address at the hearing or in its order of dismissal
Vasquez’s request for needs-based fees under section 7605.
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Vasquez appealed.
DISCUSSION
1. Standard of Review
The court’s determination whether to award attorney fees
is reviewed de novo when the issue is one of statutory
construction and, generally, in all other contexts for abuse of
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Vasquez filed her own parentage action in Arizona while
her motion to quash was pending.
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Vasquez filed a premature notice of appeal from the
March 19, 2021 minute order granting her motion to quash,
denying her attorney fee request and directing Vasquez to
prepare a written order after hearing. We treat the appeal as
timely filed following the court’s November 19, 2021 signed
findings and order after hearing granting the motion to quash.
(See Cal. Rules of Court, rule 8.104(c)(2) [when minute order
directs preparation of final order, the entry date of order is date
order is signed and filed]; (d)(2) [notice of appeal filed after the
superior court has announced its intended ruling, but before it
has rendered judgment may be treated as filed immediately after
entry of appealable judgment or order]; see also Code Civ. Proc.,
§ 904.1, subd. (a)(3) [order granting motion to quash appealable
order].)
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discretion. (Mountain Air Enterprises, LLC v. Sundowner
Towers, LLC (2017) 3 Cal.5th 744, 751; see N.S. v. D.M. (2018)
21 Cal.App.5th 1040, 1053 [“[w]e review a denial of fees under
section 7605 for abuse of discretion but apply de novo review to
questions of statutory interpretation”].) The court’s factual
findings in support of its determination are reviewed for
substantial evidence. (In re Marriage of Knox (2022)
83 Cal.App.5th 15, 25.)
2. The Family Court Did Not Abuse Its Discretion in
Finding Velasco’s Counsel Had Not Acted in Bad Faith,
but Failed To Consider Velasco’s Bad Faith Under
Section 271
Section 271, subdivision (a), authorizes a court to award in
its discretion “attorney’s fees and costs on the extent to which the
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 costs of litigation by encouraging cooperation
between the parties and the attorneys. An award of attorney’s
fees and costs pursuant to this section is in the nature of a
sanction.”
Vasquez contends Velasco’s bad faith was patent: Velasco
declared under penalty of perjury in his UCCJEA declaration
that Lina had resided with him in California since her birth even
though he obviously knew, and Vasquez’s counsel had told him in
advance of her filing the motion to quash, that Lina had resided
in Arizona since December 2019.
The court found Velasco’s counsel had not acted
unprofessionally, apparently distinguishing between a bad faith
effort to mislead the court, on the one hand, and counsel’s
reliance on Velasco’s assurances that Lina, while in Arizona on
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an extended vacation, continued to reside with him in La Puente.
That finding, sufficiently supported by Velasco’s and his
attorney’s statements in the record, was not an abuse of
discretion. (See In re Marriage of Corona (2009) 172 Cal.App.4th
1205, 1225 [“[a] sanctions order under section 271 is reviewed for
abuse of discretion”; “we will overturn 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
Feldman (2007) 153 Cal.App.4th 1470, 1478 [same].)
However, the family court made no finding whether Velasco
had acted in bad faith—that is, whether he understood at the
time he filed his declaration that Lina was no longer living in
Los Angeles or whether he believed in good faith that she was
only visiting Arizona. Remand is required for the court to
address that question in the first instance.
3. The Court Failed To Consider and Make the Findings
Required by Section 7605
Section 7605, applicable to parentage actions, provides,
“(a) In any proceeding to establish physical or legal custody of a
child or a visitation order under this part . . . the court shall
ensure that each party has access to legal representation to
preserve each party’s rights by ordering, if necessary based on
the income and needs assessments, one party, except a
government entity, to pay to the other party, or to the other
party’s attorney, whatever amount is reasonably necessary for
attorney’s fees and for the cost of maintaining or defending the
proceeding during the pendency of the proceeding. [¶] (b) When
a request for attorney’s fees and costs is made under this section,
the court shall make findings on whether an award of attorney’s
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fees and costs is appropriate, whether there is a disparity in
access to funds to retain counsel, and whether one party is able to
pay for legal representation of both parties. If the findings
demonstrate disparity in access and ability to pay, the court shall
make an order awarding attorney’s fees and costs.”
The purpose of section 7605, like its section 2030
counterpart applicable in dissolution actions, “‘“is not the
redistribution of money from the greater income party to the
lesser income party” but instead “parity: a fair hearing with
two sides equally represented.” [Citation.] “The idea is that both
sides should have the opportunity to retain counsel, not just (as is
usually the case) only the party with the greater financial
strength.”’” (C.T. v. K.W. (2021) 71 Cal.App.5th 679, 684; accord,
N.S. v. D.M., supra, 21 Cal.App.5th at p. 1054.)
Both section 7605, subdivision (b), and section 2030 require
the court to make express findings on the propriety of a needs-
based award. (In re Marriage of Knox, supra, 83 Cal.App.5th at
pp. 28-29 [the Legislature’s use of “shall” in section 2030 makes
clear the need-based finding is both mandatory and must be
explicitly made on the record]; In re Marriage of Morton (2018)
27 Cal.App.5th 1025, 1050-1051 [same]; see generally Kevin Q. v.
Lauren W. (2011) 195 Cal.App.4th 633, 642 [sections 7605 and
2030 are substantively identical; they require the court to “first
assess whether a fee award is necessary to ensure access to legal
representation and then, based on that assessment, award that
amount which is reasonably necessary to ensure ‘each party has
access to legal representation’”].)
Here, perhaps because much of the parties’ arguments were
directed to the issue of bad faith, the family court overlooked
Vasquez’s request for need-based fees and failed to make the
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statutorily required findings. Because we cannot determine
whether the court would have awarded fees had it properly
considered the request, the error is not harmless. (See In re
Marriage of Morton, supra, 27 Cal.App.5th at p. 1051 [error in
denying fees under section 2030 is reversible unless there is “‘a
reasonable probability that in the absence of the error, a result
more favorable to the appealing party would have been
reached’”].) A remand is necessary to permit the court to comply
with the requirements of section 7605, subdivisions (a) and (b).
DISPOSITION
The order is reversed, and the matter remanded for the
family court to make the findings required by section 7605 and to
consider whether Velasco should be sanctioned under section 271.
In all other respects the order is affirmed. Vasquez is to recover
her costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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