Filed 6/22/15 Marriage of Weiss CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of BRETT WEISS and

LI JUAN WEISS.

D065042

BRETT WEISS,

Appellant, (Super. Ct. No. D539194)

v.

LI JUAN WANG,

Respondent.

APPEAL from an order of the Superior Court of San Diego County, Jeffrey B.

Barton, Judge. Affirmed; motion for sanctions on appeal denied.

Law Offices of Stephen Ure and Stephen Ure for Appellant.

Yelman & Associates, Sara R. Neumann and Tara Yelman for Respondent.

Brett Weiss appeals from an order awarding his former wife, Li Juan Wang,

$22,500 in attorney fees as a sanction for Weiss's conduct precluding settlement and increasing litigation costs in a family law proceeding. (Fam. Code,1 § 271, subd. (a).)

We affirm. We deny Wang's motion for sanctions on appeal.

RELEVANT FACTS AND PROCEDURE

We summarize the evidence in the light most favorable to the court's factual

findings. (See In re Marriage of Duffy (2001) 91 Cal.App.4th 923, 931.)

Weiss and Wang (a Chinese citizen) married in March 2010, and separated two

years later in June 2012. Neither party filed for dissolution, but in October 2012 Weiss

filed an annulment petition alleging Wang had committed fraud. Weiss notified the

Immigration and Naturalization Service (INS) of his petition, seeking to interfere with

Wang's legal residency application. Weiss told Wang he would withdraw his annulment

petition if Wang agreed to "walk away from the marriage with her car and nothing more."

(Italics omitted.)

Wang and her attorney repeatedly requested that Weiss dismiss the annulment

petition, stating it had no merit and was brought solely to harass Wang. Weiss's attorney

declined to dismiss the petition, and refused to identify the basis for the petition, stating

the issues would be "addressed" at the annulment hearing.

From November 2012 through March 2013, Wang attempted to obtain discovery

regarding the grounds for the annulment petition. Weiss failed to cooperate and engaged

in actions preventing his deposition and precluding Wang from obtaining relevant

information.

1 All undesignated statutory references are to the Family Code.

2 On March 7, the court (Judge William McAdam) held a hearing on Wang's first

section 271 motion in which she sought sanctions for Weiss's obstructionist conduct.

After the hearing, the court entered an order finding Weiss "engaged in conduct clearly

not in conformance with [section] 271," and ordered Weiss to pay sanctions of $7,443.

The annulment trial was scheduled for Monday April 29. On Friday April 26,

Weiss informed Wang he would withdraw his annulment petition and would proceed

with a dissolution action. On April 29, the parties stipulated to a judgment of dissolution

on status.

Shortly after, Wang filed a second section 271 sanctions motion, seeking attorney

fees incurred in defending against Weiss's " 'frivolous' " annulment petition. A trial was

held on Wang's motion in September 2013. Both parties were represented by counsel.

Both parties testified, were cross-examined, and submitted exhibits. At the hearing,

Wang claimed Weiss filed the annulment petition in bad faith without any valid legal or

factual basis and reported her to immigration officials solely to intimidate and harass her

and increase her litigation costs. Weiss countered he filed the petition based on his

former attorneys' advice and on his good faith belief he was entitled to an annulment

based on Wang's extramarital affairs, lies that " 'she loved' " him at the time of the

marriage, and marrying him for a "green card."

After considering the evidence, the court (Judge Jeffrey Barton) found Wang met

her burden to show entitlement to section 271 sanctions, and awarded her $22,500, which

was about one-third of her claimed attorney fees. In a statement of decision, the court

found there was no arguable basis for the annulment petition and Weiss's filing and

3 maintenance of the petition reflected uncooperative conduct that precluded settlement and

increased attorney fees. The court stated the evidence was "un-rebutted" that the parties

had a longstanding romantic relationship spanning eight years, including during the

marriage, and there is no legal basis for an annulment under these circumstances. The

court stated Weiss's claim that Wang had never "loved him and had in essence 'used' him

to obtain a green card and legal status in this country" did not support an annulment even

if the alleged facts were true. The court stated Weiss's "fail[ure] to dismiss a defective

nullity petition until the day before trial . . . caused the expenditure of additional and

unnecessary work by [Wang's] attorney."

The court also found Weiss's reporting the annulment petition to the INS to be

"sanctionable conduct" because there was no valid basis for the report and the report

substantially increased Wang's costs in the family law proceeding. The court stated that

Weiss's offer to dismiss the nullity proceeding, but "only if his terms of settlement were

reached" frustrated meaningful settlement and violated the policy of encouraging

cooperation between the parties. (Italics added.)

The court awarded Wang $22,500 under section 271. The court declined to award

additional attorney fees under sections 2255 or 2030, which require the court to evaluate

the relative income and needs of the parties. With respect to this latter conclusion, court

stated: "Neither party was credible regarding the income or assets currently under their

control. . . . [I]n reality, the Court cannot make an accurate determination of either the

need or the respective ability of either party to pay fees based on their evasive,

incomplete and impeached testimony. Thus, need and ability fees are denied." (Italics

4 added.) The court noted that "both sides . . . conducted a strident and argumentative

litigation" and "neither [side] should be rewarded for so doing."

Six weeks later, in November 2013, the court issued a supplemental order, stating

that in awarding the $22,500 under section 271, it "gave careful and balanced

consideration to the documentary and testimonial evidence presented by the parties, the

credibility of the witnesses, the argument of counsel, and applicable statutory case law."

The court also noted a prior attorney fees award of $3,500 to Wang's attorney remains

unpaid, even though the amount was due by May 13, 2013.

DISCUSSION

I. Appellate Rules

It is a fundamental rule of appellate law that the lower court's ruling is presumed

correct. We are required to make all reasonable factual inferences favoring the court's

order. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)

As the party seeking reversal, the appellant has the burden to provide an adequate record

to overcome the presumption of correctness and show prejudicial error. (See Aguilar v.

Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

A party has the duty "to support the arguments in its briefs by appropriate

reference to the record, which includes providing exact page citations." (Bernard v.

Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205; Cal. Rules of Court, rule

8.204(a)(1)(C).) When an appellant fails to provide citations to the record supporting his

factual assertions, his arguments are deemed waived. (See Duarte v. Chino Community

Hospital (1999) 72 Cal.App.4th 849, 856; see also City of Lincoln v. Barringer (2002)

5 102 Cal.App.4th 1211, 1239; Guthrey v. State of California (1998) 63 Cal.App.4th 1108,

1115.) Factual statements not supported by citations to the record are improper and

cannot be considered. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; Pulver v.

Avco Financial Services (1986) 182 Cal.App.3d 622, 632.)

A party who challenges the factual basis of a court's conclusion must also set

forth, discuss, and analyze all the evidence on that point, both favorable and

unfavorable. (See Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) If

the appellant fails to cite and discuss all of the relevant evidence, we may treat the issue

as waived. (Ibid.)

II. General Principles Governing Attorney Fees Under Section 271

Section 271 provides a family court with broad discretion to impose sanctions on a

party who engages in conduct that "frustrates the policy of the law to promote settlement

of litigation and . . . reduce the cost of litigation." (§ 271, subd. (a).)2 We review a

section 271 sanctions order under the abuse of discretion standard. (In re Marriage of

2 Section 271, subdivision (a) states: "Notwithstanding any other provision of this code, 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."

6 Feldman (2007) 153 Cal.App.4th 1470, 1478.) " ' ". . .' "[T]he trial court's order will be

overturned only if, considering all the evidence viewed most favorably in support of its

order, no judge could reasonably make the order." ' " [Citation.] "[W]e must indulge all

reasonable inferences to uphold the court's order." [Citation.]' " (In re Marriage of Sorge

(2012) 202 Cal.App.4th 626, 652-653; see In re Marriage of Fong (2011) 193

Cal.App.4th 278, 291.) " 'The trier of fact is the sole judge of the credibility and weight

of the evidence. . . .' [Citation.]" (In re Marriage of Greenberg (2011) 194 Cal.App.4th

1095, 1099.)

In deciding the proper sanctions amount, a court should take into consideration

both parties' incomes, assets, and liabilities. (§ 271, subd. (a).) However, section 271 is

not a needs-based statute. (§ 271, subd. (a); In re Marriage of Corona (2009) 172

Cal.App.4th 1205, 1225.) A court may award section 271 fees even if the moving party

has substantial assets and has the ability to pay his or her own fees. "The only stricture

imposed by [section 271] is that the sanctions may not impose an unreasonable financial

burden on the party sanctioned." (In re Marriage of Falcone & Fyke (2012) 203

Cal.App.4th 964, 995.) In determining whether a sanctions award will impose this

burden, the court may consider the party's existing income and assets and the ability to

earn income. (See In re Marriage of Norton (1988) 206 Cal.App.3d 53, 60; see also In re

Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 180.)

7

III. Analysis

A. Court Did Not Abuse Discretion in Imposing Section 271 Sanctions

Weiss contends the court abused its discretion in finding his actions frustrated the

settlement process and unnecessarily increased litigation costs. He argues that he always

acted in good faith and was "willing and actively trying to settle the case," and there is

"no indication in the record" that he "had a motive to frustrate settlement or purposely run

up costs."

Weiss waived this argument by failing to present a summary of all evidence

presented at the section 271 hearing. In the Factual section of his appellate brief, Weiss

did not discuss the evidence, and instead asserted only that "the trial on attorney's fees

and sanctions was heard on September 23, 2013. During this evidentiary hearing, both

parties testified and a written decision was entered . . . ." In the Argument section, Weiss

discussed only his own testimony, and not the evidence and arguments presented by

Wang. Weiss did not provide citations to the factual record for many of these factual

assertions.

"Failure to set forth [all of] the material evidence on an issue waives a claim of

insufficiency of the evidence." (Brockey v. Moore (2003) 107 Cal.App.4th 86, 96.)

Parties challenging the trial court's decision based upon the absence of substantial

supporting evidence " 'are required to set forth in their brief all the material evidence on

the point and not merely their own evidence. Unless this is done the error is deemed

waived.' . . . [Citations.]" (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875,

881.) By discussing only evidence tending to support his position and failing to provide

8 proper supporting record citations, Weiss waived his right to challenge the sufficiency of

the evidence to support the court's conclusions. (See Nwosu v. Uba, supra, 122

Cal.App.4th at p. 1246; Brockey v. Moore, supra, 107 Cal.App.4th at pp. 96-97.)

Weiss's contention additionally fails on its merits. The evidence was undisputed

that the parties had a romantic relationship during the marriage, and therefore the

annulment petition was frivolous on its face. (See In re Marriage of Ramirez (2008) 165

Cal.App.4th 751, 757; In re Marriage of Meagher & Maleki (2005) 131 Cal.App.4th 1, 6-

9.) Wang and Wang's attorney repeatedly communicated to Weiss and his counsel that

the annulment petition was without merit and that it was substantially increasing Wang's

litigation costs. Weiss nonetheless waited until the eve of the annulment trial to

withdraw the claim. Further, the evidence supported the court's finding that Weiss

reported the annulment petition to the INS for the purpose of pressuring Wang to agree to

an unfair settlement and substantially increased the litigation costs by requiring Wang to

retain an immigration attorney and requiring her own attorney to research and pursue a

defense on the immigration issues.

Ignoring this evidence, Weiss relies on various facts that are favorable to him,

including his willingness to withdraw the annulment claim before trial, his testimony that

he relied on his attorneys' advice in pursuing the annulment claim, and his testimony that

he in good faith believed he had valid reasons to report Wang to the INS. Weiss made

these same arguments to the trial court, and the court declined to credit the evidence

and/or find that these facts negated Wang's evidence that Weiss had engaged in

uncooperative conduct. The court had a reasonable basis to reach these conclusions.

9 Weiss additionally argues the section 271 sanctions were improper because he

"did not appear at the [section 271] hearing prepared or expecting to defend his petition

for nullity." Weiss does not cite to any facts supporting this claim, and this contention is

contradicted by the record. Wang's section 271 moving papers identified Weiss's

annulment petition as a primary ground for her argument that section 271 sanctions were

warranted. At the trial, both parties testified (and were cross-examined) about the

grounds for the annulment petition and whether Weiss had a valid basis to bring the claim

or whether it was brought for an improper purpose. Weiss had a full and fair opportunity

to present his defense at the sanctions hearing.

B. The Court Did Not Abuse Discretion in Sanctions Amount

Weiss also contends the court erred because it did not determine his ability to pay

the $22,500 sanctions award. In support, Weiss directs us to one portion of the court's

lengthy statement of decision in which the court stated it was unable to make "an accurate

determination of either the need or the respective ability of either party to pay fees . . . ."3

The court made this statement in connection with its ruling on Wang's request for

3 This portion of the court's ruling read: "Neither party was credible regarding the income or assets currently under their control. If [Weiss] is to be believed, he makes $1,400.00 a month. He does have some liquid assets which will be reduced by $26,000.00 after paying the sanctions awarded here and those previously awarded. [Wang] has access to funds in at least one bank account and monthly income that is three times greater than Petitioner. She also will have an additional $26,000.00 to contribute towards fees based on this award and the outstanding sanctions. However, in reality, the Court cannot make an accurate determination of either the need or the respective ability of either party to pay fees based on their evasive, incomplete and impeached testimony. Thus, need and ability fees are denied." (Italics added.)

10 "need and ability" attorney fees under sections 2255 and 2030. Unlike section 271, these

code sections require the court to find that the award is justified by the parties' relative

income levels, needs and abilities to pay. (§§ 2255, 2032, subd. (a).) In declining to

award fees under these statutes, the court stated it found both parties' testimony was

"evasive" and "incomplete" regarding his or her own financial circumstances and thus an

additional sanctions award under sections 2255 and 2030 was not warranted.

Viewed in context of the entire statement of decision, the court's comments on the

section 2255/2030 sanctions issue did not negate the court's earlier factual finding that the

$22,500 award was an appropriate sanctions amount under section 271. Absent evidence

to the contrary, a trial court is presumed to understand and properly apply the applicable

law. (People v. Coddington (2000) 23 Cal.4th 529, 644.) In her section 271 moving

papers, Wang stated that "[i]n making an award of attorney's fees pursuant to [section

271], the Court shall not impose a sanction that 'imposes an unreasonable financial

burden on the party against whom the sanction is imposed.' " (Italics added.) At the

hearing, Weiss's attorney noted that he was seeking to submit evidence of Mr. Weiss's

assets for the court to make an "informed decision" on the section 2030 matter and the

271 issues. In its statement of decision, the court stated Weiss had "some liquid assets"

from which he could pay the $22,500 sanctions award.

On this record, we are satisfied the court's statement that it could not make an

accurate determination of both parties' financial conditions pertained solely to the

need/ability analysis of sections 2255 and 2030, and cannot be fairly interpreted to reflect

the court's inability or failure to determine that the $22,500 award would not impose an

11 unreasonable financial burden on Weiss. Under settled appellate principles, we interpret

the court's order as encompassing a finding that the award would not impose an

unreasonable financial burden.

Further, to the extent Weiss challenges the sufficiency of the evidence to support

the court's finding regarding the sanctions amount, this argument is without merit. First,

Weiss waived the challenge by failing to set forth all the evidence presented on this issue

at trial. (See Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177

Cal.App.4th 209, 218.) He ignores Wang's evidence regarding his financial resources,

and discusses only the evidence favorable to him and does not provide supporting record

citations.

Moreover, the record contains ample evidence to show the $22,500 sanctions

award would not impose an unreasonable financial burden on Weiss. Viewing the facts

in the light most favorable to Wang, the evidence showed Weiss is an experienced

businessperson who has an ownership interest in two businesses (at least 50 percent in

one business and 17 percent of the other business); owns three rental properties in

addition to the home in which he is living; has savings accounts; owns a sports car (a

Lotus) without any debt; drives a vehicle leased for him by one of his companies; and has

company-paid medical and automobile insurance. Weiss testified that his businesses

"depend on my personal credit in order to keep borrowing money," implying that his

personal credit rating is strong.

At the hearing Weiss testified that he is "broke" and cannot afford to pay

sanctions. However, this claim was substantially impeached at trial. For example, Weiss

12 testified the total equity on his three rental properties (other than his home) was $69,000.

But he also acknowledged his February 2013 Schedule of Assets and Debts (Assets

Schedule) showed his equity in these properties was even higher—approximately

$115,000. In asserting that these properties should not be considered as part of his assets,

Weiss testified that two of the properties were subject to a "1031 tax-deferred exchange"

when he purchased them "some years ago." But he acknowledged he did not have a full

understanding of the tax issues and could not explain how these issues precluded his

ability to access these funds (or at least a portion of the funds) through a refinance or sale

of the properties. Even if he would have owed taxes after a sale of the properties, he

would still have equity available to pay the $22,500 sanctions award at the time of trial.

Weiss also acknowledged at trial that in February 2013 (two months before the

annulment hearing was scheduled) he had $72,000 in savings in a Vanguard account, and

shortly before that time, he withdrew $50,000 from this account to invest in one of his

businesses. Weiss additionally testified he had a cash value in a life insurance policy of

$26,932. To the extent any of these funds had dissipated by the time of the September

hearing, the court had a reasonable basis to find that Weiss diverted the funds to avoid

paying attorney fees.

Weiss argues the court erred in considering much of this evidence because the

information was based primarily on his February 2013 Assets Schedule, and the court

"refused to allow [him]" to present an updated Assets Schedule prepared in April 2013.

This contention concerns Weiss's counsel's request that Weiss be allowed to leave

the witness stand during his cross-examination to look through his papers for a proof of

13 service for the claimed updated Assets Schedule. The court responded that this request

did not appear to be "a good use of time." The court's ruling was well within its broad

authority to manage the trial, and there is no showing of prejudice. Earlier in the trial,

Wang testified that she had never received updated financial information, and Wang's

counsel confirmed this fact. Weiss had the full opportunity to rebut these statements by

producing the claimed April 2013 Assets Schedule during his direct and/or redirect

examinations, but he never did so. The court's refusal to allow him to look for a proof of

service during his cross-examination did not preclude Weiss from submitting this

evidence at other times during the trial. Further, Weiss had the opportunity to testify

about any change of circumstances since preparing the February 2013 Asset Schedule.

On this record, there was no evidentiary error.

We additionally note that on redirect Weiss testified that the total value of his

assets was $659,732.10, and that his total liabilities are $612,739.60, leaving his net

worth at $57,007.50. Even assuming this statement was true, the court did not err in

finding that a $22,500 attorney fees award would not cause a substantial financial burden

under all of the circumstances, particularly given the evidence showing that Weiss had a

substantial ability to earn income from his businesses and his rental properties. In

considering whether an award would impose an "unreasonable financial burden" on the

party to be sanctioned (§ 271, subd. (a)), a court may consider the party's ability to earn

income in addition to his or her current assets and income level. (See In re Marriage of

Norton, supra, 206 Cal.App.3d at p. 60 [interpreting former Civ. Code, § 4370.5, the

predecessor to § 271].)

14 Finally, we reject Weiss's argument that we must reverse the sanctions order

because the court stated that Weiss's testimony that one of his businesses (Image Flow)

earned $61,000 in gross income during a three-month period was inconsistent with the

documentary evidence showing bank deposits of $890,000 for this business during the

same time period. Weiss notes that the court's $61,000 statement was incorrect—Weiss

had actually testified that the deposits to Image Flow were $561,000.

There is no reasonable possibility the court would have reached a different

conclusion on the sanctions amount if it had correctly identified the $561,000 figure. The

$561,000 figure provides an even stronger basis for the court's conclusion that Weiss's

businesses were earning money and thus he had access to liquid funds. Additionally,

Weiss's testimony was impeached on numerous other related matters, and his lack of

credibility on the precise Image Flow deposit amounts is not likely to have been a crucial

factor in the court's credibility determinations.

IV. Sanctions on Appeal

In a lengthy motion, Wang requests that we order sanctions on appeal. Wang

argues that sanctions are warranted because Weiss violated numerous appellate rules,

failed to accurately state the relevant facts, and asserted frivolous legal arguments. (See

Cal. Rules of Court, rule 8.276(a)(1), (2) & (4); Code Civ. Proc., § 907.) We decline to

award sanctions. Although we have found Weiss did not meet his burden to show

reversible error, his appeal was not frivolous.

In reaching this conclusion, we remind both parties and their counsel of the

importance of adhering to the policies underlying the family law statutes, which require

15 parties to cooperate and work together to reduce litigation costs. On our review of the

record, we agree with the trial court that both parties engaged in inflammatory and

unproductive litigation, and we echo the court's concerns that neither party's counsel has

used his or her best efforts to reduce the level of hostility and acrimony in the litigation.

We urge counsel to do so in the service of their clients' best interests.

DISPOSITION

Order affirmed. The parties to bear their own costs on appeal.

HALLER, Acting P. J.

WE CONCUR:

MCDONALD, J.

IRION, J.

16