George v. Shams-Shirazi

Filed 2/11/20 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

NICOLE GEORGE, Plaintiff and Respondent, A155158 v. KAYVON SHAMS-SHIRAZI, (San Francisco County Super. Ct. No. FMS-15-386673) Defendant and Appellant.

In this child custody matter, appellant Kayvon Shams-Shirazi seeks relief from an order awarding respondent Nicole George $13,000 in attorney fees as sanctions under Family Code section 271.1 On appeal, he contends the ruling is subject to reversal because the motion for sanctions was untimely filed. We affirm. FACTUAL AND PROCEDURAL BACKGROUND The parties, who were never married, have one child together. Following a child custody hearing in January 2017, the trial court entered an order giving respondent sole physical and legal custody. In June 2017, appellant filed a request to set aside the custody order under Code of Civil Procedure section 473, subdivision (b), on the ground of surprise. He also sought to change the existing custody and timeshare orders. The trial court denied appellant’s request and denied, without prejudice, respondent’s

1 All statutory references are to the Family Code unless otherwise stated.

request for attorney fees under sections 271 and 2030.2 The court filed its findings and order after hearing on August 7, 2017, and served its ruling on the parties that same day. In September 2017, appellant filed a second request to modify the January 2017 custody order. The trial court denied his request and denied respondent’s request for section 271 sanctions. On March 21, 2018, respondent again sought sanctions under section 271 relating to appellant’s June 2017 motion to set aside or modify the custody order. Appellant filed an objection but did not challenge the motion on the basis of timeliness. On May 1, 2018, the trial court ordered appellant to pay respondent $10,000 in sanctions under section 271. Appellant then filed an ex parte motion for reconsideration under Code of Civil Procedure section 1008, arguing for the first time that respondent’s sanction request was untimely under California Rules of Court, rule 3.1702(b).3 The trial court denied appellant’s motion for reconsideration, finding he had failed to demonstrate new facts, circumstances, or law. On June 6, 2018, the court entered an order awarding respondent $10,000 in attorney fee sanctions for defending against appellant’s June 2017 motion to set aside the custody order. The court separately awarded her $3,000 in attorney fee sanctions for having to defend appellant’s ex parte motion for reconsideration. DISCUSSION Section 271 authorizes the trial court to award attorney fees and costs in family law litigation where a party’s conduct “frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost