Request for attorney’s fees and sanctions
4. ALEAH MCNABB V. TYLER SWINNEY 22FL0507
On January 8, 2026, Petitioner filed and served a Request for Order (RFO) seeking attorney’s fees and sanctions. She filed and served a Declaration of Aleah McNabb, a Declaration of Steven R. Burlingham, and a Memorandum of Points and Authorities concurrently with her RFO.
Respondent filed and served a Responsive Declaration to Request for Order on January 14th.
Petitioner filed and served her Reply Declaration on February 2nd.
Petitioner is requesting sanctions pursuant to Civil Procedure § 128.5 in the amount of $4,700. The request is for sanctions against Respondent only.
Respondent opposes the request.
“A trial court may order a party...to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” Cal. Civ. Pro. § 128.5(a). For purposes of Section 128.5, the term “frivolous” is defined as “...totally and completely without merit for the sole purpose of harassing an opposing party.” Id. at (b)(2).
Here, the court does not find that Respondent’s October 15, 2025 RFO was either completely without merit or filed for the sole purpose of harassing Petitioner. Petitioner points to the fact that there was no substantial change in circumstances as required by Montenegro v. Diaz, however, Petitioner is applying the incorrect standard. For the substantial change in circumstances standard to apply, there must be “...a clear, affirmative indication the parties intended” the stipulated orders to be a final judicial determination.
Montenegro v. Diaz, 26 Cal. 4th 259 (2001). There is no such express language in the stipulation. Petitioner relies on Section 8 of the stipulation to argue that Montenegro applies. This reliance is misplaced. In fact, Section 8 of the stipulation expressly contemplates that there may be a future change in custody orders either by written agreement of the parties or court order. There is nothing indicating that the intent was for the stipulation to be a final order.
In the absence of a final judicial determination on custody, the standard for a change of custody is the best interests of the child. See Fam. Code § 3020
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time, filing future RFOs without first trying to resolve the matter may result in sanctions in the future.
For the foregoing reasons, Petitioner’s request for sanctions is denied.
Respondent is directed to prepare the Findings and Orders After Hearing (FOAH), however this order is effective immediately upon the court’s adoption of the tentative ruling and is not conditioned on the preparation of the FOAH.
TENTATIVE RULING #4: THE REQUEST FOR SANCTIONS IS DENIED. RESPONDENT IS DIRECTED TO PREPARE THE FINDINGS AND ORDERS AFTER HEARING (FOAH), HOWEVER THIS ORDER IS EFFECTIVE IMMEDIATELY UPON THE COURT’S ADOPTION OF THE TENTATIVE RULING AND IS NOT CONDITIONED ON THE PREPARATION OF THE FOAH.
NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY PHONE CALL TO THE COURT AT (530) 621-6725 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07; SEE ALSO LEWIS V. SUPERIOR COURT, 19 CAL.4TH 1232, 1247 (1999). NOTICE TO ALL PARTIES OF A REQUEST FOR ORAL ARGUMENT AND THE GROUNDS UPON WHICH ARGUMENT IS BEING REQUESTED MUST BE MADE BY PHONE CALL OR IN PERSON BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07.