Assessing risk of Family Code Section 271 sanctions

On May 20, the Daily Journal published "Family law and resilience: A time to carry on," by retired Los Angeles County Superior Court Judges Scott M. Gordon and Thomas Trent Lewis, addressing the impact of the current global pandemic on family courts -- and the family law community at large -- and how we move forward. The back log of family law cases in the superior court is severe, estimated at 32,000. Judge Gordon and Judge Lewis proposed certain corona courtesies that we should follow within the family law community to help us and our clients adjust to the new reality of our courts and deal with the burgeon demand on the court system. One such corona courtesy is to extend civility, courtesy and cooperation in our practice, in accordance with the Court of Appeal's ruling in In re Marriage of Davenport, 194 Cal. App. 4th 1507 (2010).

Unfortunately, in many cases, courtesies and civilities are not going to be extended and courts should be open to remedies to curb abuses.

There have always been litigants who feel their interests are being served by delay. It is highly likely that such litigants are going to be disinclined to adopt corona courtesies. In the absence of a fully functioning public court system, there is enormous potential for unprecedented delay. Under the current circumstances, judges should be open to consequences, including Family Code Section 271 sanctions, for conduct that does not promote settlement, unnecessarily protracts litigation, and increases legal fees. As Chief Justice Potter Stewart noted in his concurring opinion in Jacobellis v. State of Ohio, 378 U.S. 184 (1964), with reference to "hard-core pornography," "I know it when I see it." More than ever, judges should recognize foot-dragging delay for the sake of delay when they see it and use it as a basis for sanctions.

There are familiar scenarios involving the imposition of Family Law Section 271 sanctions: misuse of the discovery process, revealing confidential information, uncooperative behavior, etc. See In re Marriage of Green, 213 Cal. 3d 14, 27-29 (1989). In one case, a party's efforts to capitalize on the opposing party's untimely death was considered a factor in awarding, and later affirming, sanctions under Section 271. See In re Marriage of Daniels, 19 Cal. App. 4th 1102 (1993). Sanctions under Section 271 may also be appropriate in cases where the parties have resources to retain private judges yet refuse to do so to gain an unfair advantage as a result of the delay in public courts. As the Court of Appeal acknowledged in In re Marriage of Corona, 172 Cal. App. 4th 1205 (2009), litigants who flout the policy of promoting settlement of litigation and encouraging cooperation by engaging in conduct that increases litigation costs are subject to imposition of attorney fees and costs as a sanction. Such an award of sanctions under Section 271 need not, "be limited to the cost to the other side resulting from the bad conduct." Id. Section 271's purpose is, "to promote settlement and to encourage cooperation which will reduce the cost of litigation.'' See In re Marriage of Feldman, 153 Cal. App. 4th 1495 (2007); In re Marriage of Tharp, 188 Cal. App. 4th 1295 (2010). Keep in mind that a requesting party is not required to demonstrate any financial need or suffer any actual injury as a perquisite to requesting an award of attorney fees as sanctions under Section 271. See In re Marriage of Feldman, 153 Cal. App. 4th at 1480.

Many family law litigants have the financial means to retain a private judge. When courts reopen, they will be overwhelmed with cases with previously scheduled dates which will be pushed into the future, as well as new cases that have arisen during the lockdown and have yet to be heard. Similar to choosing the mediation path, removing a case from the system will not only result in a more efficient and expeditious resolution of a case, but it will also undoubtedly reduce the strain on the judicial system.

In contrast to the extraordinary delays caused by the present situation, retaining a private judge ultimately results in efficiency and cost savings. Trials in private judging forums are usually set more quickly and are shorter than court trials. The increased efficiency (shorter trials, avoidance of delay and continuances, etc.) usually translates into substantial cost savings for the client. When our courts reopen, the advantages offered by private judging will be more valuable than ever before.

Courts have been reluctant to impose penalties on litigants for refusing to take cases out of the public system. That concern should be weighed against the need to curb abuses where a party is embracing the opportunity to delay. A party who has the option of capitalizing on the advantages of alternative dispute resolution but unreasonably resists from doing so should consider consequences of their conduct. Parties who arbitrarily refuse to choose a more efficient path -- whether it is mediation or private judging -- for what looks, sounds and feels like delay for the sake of delay should be sanctioned.

An open question is whether a 271 sanctions award would be affirmed on appeal if it was primarily based on a trial court's finding that notwithstanding the adequacy of financial resources available to pay for a private judge, the sanctioned party refused to go private so as to delay.

Family law practitioners should focus on developing a record to establish a pattern of unacceptable delay. Self-serving letters from lawyers normally accomplish nothing more than increasing fees and facilitating a client's misconception that points are being scored. However, for purposes of creating a record to support a sanctions request involving the refusal to go private, pointing out the absence of legal or factual basis for the other side's position may assist, especially if these points include, "If your client seriously disputes the above, he should be enthusiastic about winning sooner than later by having our disputes heard by a private judge." 