Webb v. Webb

Filed 6/13/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

WILLIAM WEBB, B269311

Petitioner and Appellant, (Los Angeles County
Super. Ct. No. SD030555)
v.

DEBORAH WEBB,

Respondent and Appellant;

TROPE & DeCAROLIS et al.,

Real Parties in Interest and
Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County. Marc D. Gross, Judge; Richard Montes, Judge
(Ret.). Reversed.
Law Office of John Derrick and John Gregory Derrick for
Petitioner and Appellant William Webb.
Deborah Webb, in pro. per., for Respondent and Appellant.
Trope & DeCarolis and Patrick DeCarolis; Law Offices of
Sandra Segal Polin and Sandra Segal Polin for Real Parties in
Interest and Respondents.
_________________________
 In this appeal, we are tasked with interpreting Family
Code section 271 which authorizes the trial court to award
attorney’s fees as a sanction.1 The precise question for us is
whether the statute permits an award of sanctions to non-parties
to the litigation. The trial court concluded that it did, awarding
approximately $88,000 to a party’s former counsel. We decide
that section 271 does not authorize the court to award sanctions
to non-parties, but rather is intended to promote settlement of
family law litigation through shifting fees between the parties to
the litigation. For this reason, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND2
1. The 2009 Petition
William Webb and Deborah Webb were married in 1997.
On March 4, 2009, William filed for divorce. Deborah was
represented by Sandra Polin and the Law Offices of Sandra Segal
Polin in the proceedings. The parties agreed to dismiss the action
on April 22, 2010.
2. The 2012 Petition
On February 29, 2012, William filed for divorce again. In
March 2012, Deborah retained Patrick DeCarolis and his firm
Trope & DeCarolis, as well as Polin, to represent her in this
second action.

1 All further statutory references are to the Family Code,
unless otherwise indicated.

2 We provide in some detail the procedural background that
led to the award of sanctions, but as we observed at the outset,
the appeal ultimately turns on a matter of statutory
interpretation.

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3. William Opposes DeCarolis’s Notice of Intention to Record
Lien
Approximately two months after Deborah retained
DeCarolis, Deborah filed a notice of intention to record a family
law attorney real property lien (“FLARPL”) in favor of Trope &
DeCarolis in the amount of $150,000 on the parties’ residence
(the Property).3 On June 14, 2012, William filed an ex parte
application seeking to stay the recording of the lien pending an
evidentiary hearing on the matter or, in the alternative, to limit
the lien to $50,000.4 He argued the lien amount was excessive
given the parties had no children, their assets were not
complicated, and the parties had already engaged in extensive
discovery in the 2009 marital dissolution proceeding. He further
argued that Deborah needed protection from her attorneys who
were charging excessive fees. The court denied William’s
application.

3 Section 2033 provides that “[e]ither party may encumber
his or her interest in community real property to pay reasonable
attorney’s fees in order to retain or maintain legal counsel in a
proceeding for dissolution of marriage . . . .” (§ 2033, subd. (a).)
“Notice of a family law attorney’s real property lien shall be
served either personally or on the other party’s attorney of record
at least 15 days before the encumbrance is recorded.” (§ 2033,
subd. (b)(3).)
4 “The nonencumbering party may file an ex parte objection
to the family law attorney’s real property lien. . . . The objection
shall [] include . . . [a] declaration specifically stating why
recordation of the encumbrance at this time would likely result in
an unequal division of property or would otherwise be unjust
under the circumstances of the case.” (§ 2033, subd. (c).)

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 On July 24, 2012, Deborah recorded the $150,000 lien in
favor of Trope & DeCarolis. She also recorded a $250,000 lien in
favor of the Law Offices of Sandra Polin based on a 2009 deed of
trust signed by Deborah in the prior dissolution action.
On September 6, 2012, Deborah substituted Trope &
DeCarolis out of the case. Polin was not an attorney of record in
the second action, and the parties appear to acknowledge that
Polin stopped representing Deborah at this time as well.
4. William’s and Deborah’s 2012 Requests to Expunge the
Liens
On December 13, 2012, William filed an ex parte
application asking the court to expunge the liens recorded on the
Property.5 He stated that he received no legal notice that
Deborah intended to record the $250,000 lien as required by
statute. He also argued that the liens exceeded Deborah’s
community interest in the sale proceeds. He noted that the
Property was going to be sold and asked the court to order the
proceeds from the sale to remain in escrow.
Polin and DeCarolis filed an opposition arguing that Trope
& DeCarolis had properly served William with notice of
DeCarolis’s prospective lien; they did not dispute that William

5 Section 2034 provides that “[o]n application of either party,
the court may deny the family law attorney’s real property lien
described in Section 2033 based on a finding that the
encumbrance would likely result in an unequal division of
property because it would impair the encumbering party’s ability
to meet his or her fair share of the community obligations or
would otherwise be unjust under the circumstances of the case.
The court may also for good cause limit the amount of the family
attorney’s real property lien.” (§ 2034, subd. (a).)

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had not been served with notice of Polin’s lien. Polin also filed a
supporting declaration stating that she had recorded the
FLARPL “to secure my past and present fees.” The court denied
the application pursuant to California Rules of Court, rule
3.1202(c).6
On December 31, 2012, Deborah filed an application
seeking the same relief. The court denied that application.
5. William’s 2013 Request to Expunge the Liens
On February 13, 2013, William again asked the court to
expunge the liens on the grounds they exceeded Deborah’s
community interest in the property. The court granted the
request in part: it ordered that “the proceeds to be paid on
[Polin’s] lien, upon the sale of the residence, [] be held in escrow
pending further order of [the] court.”
6. William Asks the Court to Expunge the Liens Based on the
Escrow Company’s Instructions
On June 24, 2013, William filed an ex parte application
stating that the escrow company could not comply with the
court’s order to hold the Polin lien funds in escrow unless the lien
was expunged. He also argued that several events had reduced
Deborah’s community interest in the property. On these grounds,
he asked the court to expunge the liens and order the lien funds
be held in escrow. The court concluded there was “no material
change of circumstances” and denied the request.

6 Rule 3.1202(c) provides that an applicant for ex parte relief
“must make an affirmative factual showing in a declaration
containing competent testimony based on personal knowledge of
irreparable harm, immediate danger, or any other statutory basis
for granting relief ex parte.”

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7. Judgment
On October 3, 2014, a judgment of dissolution was entered.
The court found the parties’ residence to be community property
and ordered that the property be “promptly listed for sale.” The
court “retain[ed] jurisdiction to resolve any disputes which may
arise between the parties regarding any aspect of the listing, sale
or escrow of the subject property, and specifically reserve[d] the
power to make ex parte orders on the application of either party
in the event of a dispute.” The court further ordered that
FLARPLs “placed upon the property by [Deborah], if any, shall be
paid solely from [Deborah’s] share.”
8. Probate
On June 12, 2015, William filed a petition for
conservatorship over Deborah. He informed the court that he
and Deborah had divorced and their house was about to be sold.
He expressed concern that Deborah had a “cognitive disorder,”
was taking methamphetamines, and, in light of her history of
“squandering money,” would not be able to manage her portion of
the proceeds from the sale. He suggested the proceeds from the
property sale be placed in a blocked account with monthly
distributions to Deborah for her living expenses. The court
ordered that the funds from the sale of the Property be held in
escrow.
9. William Asks the Family Court to Order the Clerk to Sign
Escrow Documents
On June 26, 2015, William filed an ex parte application in
this action stating that, despite the court’s order that the
Property be sold, Deborah refused to sign documents required for
the sale. He asked that the court clerk sign “escrow documents”
on behalf of Deborah. He further stated that the probate court

6
had ordered that Deborah’s share of the sale proceeds be held in
escrow. The court took the matter off calendar due to
reservations about interfering with the probate action. William
subsequently withdrew the probate petition and that case was
dismissed.
10. William Seeks to Confirm Order Holding Sale Proceeds in
Escrow
On July 20, 2015, William filed an ex parte application
asking the court to confirm its 2013 order that the funds for
Polin’s lien remain in escrow. William stated that Polin was
attempting to have her lien “paid on sale” based on the argument
that the judgment of dissolution superseded the court’s 2013
order that those funds remain in escrow. William also asked the
court to order Polin to release the lien so that escrow could close.
At the hearing, both DeCarolis and Polin represented to the
court that Polin’s lien was “from another case” and did not
“aris[e] out of this family law case.”7 In addition, when the court
inquired how Polin’s lien “g[ot] into this case,” DeCarolis and
Polin conceded that the Polin lien “shouldn’t have.” However,
Polin argued that because “the court made an order in the
judgment with regard to liens,” the validity of the liens had been
litigated. She further argued that William could no longer
challenge the liens because the judgment was final. The court
expressed concern as to whether it had jurisdiction to rule on a
lien that arose out of another case.

7 This was contrary to Polin’s past representations to the
court that she had recorded the FLARPL “to secure past and
present fees.” (Italics added.)

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 The court ultimately denied the application, referring to it
as an “attempt to expunge his lien.” William responded that the
application was, in fact, “purely about whether the money is held
in escrow.” The court then stated “I think the judgment trumps
the interim orders that I made,” appearing to indicate that the
2013 order that Polin’s funds be held in escrow was no longer in
effect.
11. DeCarolis and Polin Move for Sanctions
On July 23, 2015, DeCarolis and Polin moved for sanctions
against William under Family Code section 271, Code of Civil
Procedure section 128, subdivision (a), and California Rules of
Court, rule 5.14. They argued that William had brought
repetitive challenges to the FLARPLs and all of his “requested
relief” had been denied. They further argued that William had
acted in bad faith in filing for conservatorship and had “misled”
the probate court into believing he was still married to Deborah.
DeCarolis and Polin asked for sanctions in the amount of
$65,654.59 based on their time spent responding to William’s
challenges to the FLARPLs. They valued their time according to
their “hourly rate[s] in this matter.”8 In their reply, they asked
for $86,565.43 based on “additional fees.”
Judge Richard Montes, a temporary judge, presided over
the hearing. William asked for an evidentiary hearing and a
continuance so that he could obtain counsel. The judge denied
the request on the grounds “you don’t need a continuance and you
don’t need to get legal advice.”

8 DeCarolis’s calculation of his “fees” also included the time
he spent responding to Deborah’s 2013 ex parte application
challenging the FLARPLs.

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 The court granted sanctions in the amount of $88,790.18
finding that “Petitioner has no standing to dispute the . . .
FLARPLs[] recorded against the property . . . . The Court finds
that the issue of the validity of the FLARPLs has already been
litigated and decided. The Court finds that Judgment of
Dissolution entered on October 3, 2014 is res judicata on the
issues of the FLARPLs recorded against the Residence. . . . The
Court finds that Petitioner has attempted to litigate the issue of
the validity or enforceability of the FLARPLs multiple times,
including in family court and probate court. [] The Court
therefore finds that Petitioner’s litigation conduct toward the
Real Parties in Interest has frustrated 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, in violation of [section] 271.”
William and Deborah timely appealed.
DISCUSSION
William contends the court was without authority to award
sanctions to DeCarolis and Polin because they were not parties to
this action. We agree.9
“[O]ur trial courts have no inherent power to impose
monetary sanctions. [Citations.]” (Vidrio v. Hernandez (2009)

9 We take judicial notice of Deborah’s recent filing for
bankruptcy under Chapter 13 of the Bankruptcy Code. Section
362 of the Bankruptcy Code provides that a petition filed under
Chapter 13 only operates as a stay of a proceeding for the
dissolution of marriage “to the extent that such proceeding seeks
to determine the division of property that is property of the
estate.” (11 U.S.C. § 362(b)(2)(iv).) Here, the sanctions order at
issue does not “determine the division of property” belonging to
the estate. Therefore, no stay applies.

9
172 Cal.App.4th 1443, 1455.) Here, the court awarded sanctions
expressly under section 271. Section 271 provides that “the court
may base an award of 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 cost of litigation by encouraging
cooperation between the parties and attorneys. An award of
attorney’s fees and costs pursuant to this section is in the nature
of a sanction. In making an award pursuant to this section, the
court shall take into consideration all evidence concerning the
parties’ incomes, assets, and liabilities. The court shall not
impose a sanction pursuant to this section that imposes an
unreasonable financial burden on the party against whom the
sanction is imposed. In order to obtain an award under this
section, the party requesting an award of attorney’s fees and
costs is not required to demonstrate any financial need for the
award.” (§ 271, subd. (a).)
The predecessor of section 271 was former Civil Code
section 4370.6 which contained the same language quoted above.
The purpose and effect of section 4370.6 was discussed in In re
Marriage of Daniels (1993) 19 Cal.App.4th 1102 (Daniels): “This
section remains a fee-shifting device . . . . [T]he Legislature never
deviated from its requirement that this fee shifting should occur
as between the parties to the litigation . . . . [¶] In short, [Civil
Code] section 4370.6 simply vested family law courts with an
additional goad with which to enforce this state’s public policy of
promoting settlement of family law litigation, while reducing its
costs through mutual cooperation of clients and their counsel.
Thus, a party who individually, or by counsel, engages in conduct
frustrating or obstructing the public policy is thereby exposed to

10
liability for the adverse party’s costs and attorney fees such
conduct generates.” (Id. at p. 1110, italics added.)
In Daniels, the trial court awarded sanctions against a
party based on that party’s counsel’s “obstreperous” conduct
which frustrated settlement efforts and increased the costs of
litigation. (Daniels, supra, 19 Cal.App.4th at p. 1106.) In
affirming, the Court of Appeal stated that sanctions could not be
awarded against a party’s attorney under section 271 because the
statute “shift[s] the legal costs of a dissolution from one party to
another.” (Id. at p. 1107.) Civil Code section 4370.6 “does not
allow or contemplate an award against an attorney.” (Id. at p.
1110.) We conclude, based on the same reasoning, that sanctions
may not be awarded under Family Code section 271 to a party’s
attorney when it is that attorney who is requesting the sanctions
for the sole benefit of the attorney.
The plain language of section 271 supports this conclusion.
The statute provides in part that “[i]n order to obtain an award
under this section, the party requesting an award of attorney’s
fees and costs is not required to demonstrate any financial need
for the award.” (§ 271, subd. (a), italics added.) Accordingly, the
statute facially contemplates that only a party may move for an
award of sanctions under that section.
When language of a statute is clear, we need not delve into
legislative history. (Esberg v. Union Oil Co. (2002) 28 Cal.4th
262, 269.) Nevertheless, the legislative history here supports our
reading. Family Code section 271 continued Civil Code section
4370.6 with only one substantive change: the statute was
broadened to apply to all proceedings under the Family Code.
(23 Cal. Law Revision Com. Rep. (1993) pp. 109–110.) Civil Code
section 4370.6, in turn, arose from former Civil Code section 4370

11
which provided for fee-shifting between parties to the litigation.
(Daniels, supra, 19 Cal.App.4th at p. 110; In re Marriage of
Joseph (1990) 217 Cal.App.3d 1277, 1287 [“Pursuant to section
4370, subdivision (a), a trial court is authorized to award
attorney’s fees in family law cases ‘as may be reasonably
necessary for the cost of maintaining or defending the proceeding
. . . .’ ‘The purpose of the award is to provide one of the parties, if
necessary, with an amount adequate to properly litigate the
controversy. . . . [Citation.]”].)
Civil Code section 4370.6 was enacted to clarify whether
fee-shifting between the parties to the litigation may occur
regardless of a showing of need. (Daniels, supra, 19 Cal.App.4th
at p. 1109; see also Legis. Counsel’s Dig., Assem. Bill No. 2686
(1989–1990 Reg. Sess.) at pp. 1–2 [“Under existing provision of
the Family Law Act, the court may award attorneys’ fees and
costs where just and reasonable under the circumstances of the
parties . . . . [T]his bill would specify that the ability of the party
requesting an award of attorneys’ fees and costs to pay his or her
own attorneys’ fees and costs is not itself a bar to an order that
the other party pay part, or all, of the fees and costs requests. In
order to obtain an award of attorneys’ fees and costs in the nature
of a sanction, the requesting party would not be required to
demonstrate any financial need for the award.”].)
Section 271 thus is one of a series of statutes that provided
for fee-shifting between parties to family law litigation. The
legislative history is consistent with the plain language of section
271 which provides for sanctions when a party moves for fees.
We hold the statute does not support an order awarding

12
sanctions to individuals who are not parties to the action such as
respondents.10
DeCarolis and Polin cite to In re Marriage of Smith (2015)
242 Cal.App.4th 529 (Smith) in support of their assertion that
“[section] 271 sanctions have been awarded (and upheld on
appeal) to the spouse of a party.” They have either
misrepresented the holding of that case or have parsed their
words in a misleading fashion. In Smith, the trial court awarded
attorney’s fees and costs to the former husband and his current
wife under both sections 2030 and 271. (Id. at pp. 531–533.) The
Court of Appeal affirmed the award under only section 2030 and
expressly declined to reach whether the award was proper under
section 271. (Id. at p. 536.) As the Court of Appeal did not, in
fact, affirm the fee award under section 271, we do not address
that opinion further.
Respondents also cite to In re Marriage of Perry (1998) 61
Cal.App.4th 295, In re Marriage of Siller (1986) 187 Cal.App.3d
36, and In re Marriage of Jovel (1996) 49 Cal.App.4th 575 as
support for the argument that courts “routinely award[]

10 Respondents also moved for sanctions under Code of Civil
Procedure section 128 and California Rules of Court, rule 5.14.
Section 128 does not provide for sanctions but rather generally
addresses the powers of courts. Rule 5.14 provides for sanctions
for “failure without good cause to comply with the applicable
rules.” Here, respondents did not identify what rule of court
William failed to comply with and, therefore, section 5.14 does
not provide an alternate ground for awarding sanctions here.
(See Cal. Rules of Court, rule 5.14(d)(1) [“A party’s request for
sanctions must [] [s]tate the applicable rule of court that has been
violated . . . .”].) To the extent DeCarolis and Polin intended to
reference Code of Civil Procedure section 128.7, no argument was
made on this point, therefore, we do not address it.

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analogous [section] 2030 attorney fees to or from persons not
named in the underlying petition for dissolution.” Each of those
cases upholds an award of attorney’s fees made to parties to the
litigation under section 2030 or its predecessor. They are not
precedent for an award under section 271, nor do DeCarolis and
Polin claim fees under section 2030. Even if we were to find that
the reasoning employed in those cases applies to section 271,
those cases are distinguishable on the ground that the present
case involves an award made to non-parties.
We also find support for our interpretation in the stated
purpose of section 271, “to promote settlement of litigation.”
Here, judgment had already been entered when DeCarolis and
Polin moved for sanctions under section 271. There was no
showing that William’s attempts to challenge the validity of the
FLARPLs made primarily after DeCarolis and Polin had stopped
representing Deborah hindered the parties’ attempts to settle the
litigation. Rather, the record established that William’s
challenges to the liens only were efforts designed to hinder
DeCarolis’s and Polin’s attempts to collect the fees they had
charged, a large percentage of which arose in a separate action.
Accordingly, the award of sanctions was unrelated to section
271’s purpose of promoting settlement.
Because we conclude there was no authority for the court’s
order, we need not reach Deborah’s argument on appeal that the
court’s order included an erroneous finding that the liens had
been litigated at trial.11

11 Respondents’ and Deborah’s requests for judicial notice are
denied.

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 DISPOSITION
The order for sanctions is reversed. Appellants to recover
their costs on appeal.

RUBIN, J.
WE CONCUR:

BIGELOW, P. J.

GRIMES, J.

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