Marriage of Cole CA1/3

Filed 8/11/23 Marriage of Cole CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re MARRIAGE of KIKIANNE and SCOTT COLE. ___________________________________ A162601 KIKIANNE COLE, Petitioner and Appellant, (Contra Costa County Super. Ct. No. D12-03933) v. SCOTT COLE, Respondent.

This appeal arises from a family law proceeding involving former spouses Kikianne Cole and Scott Cole.1 Kikianne contends the trial court abused its discretion in awarding Scott $6,000 in sanctions pursuant to section 271 of the Family Code.2 We will affirm. FACTUAL AND PROCEDURAL BACKGROUND We limit the background to the facts relevant to this appeal.

1 Because the parties share the same last name, we will refer to them by their first names for the sake of clarity and intend no disrespect. 2 All further statutory references are to this code unless otherwise specified.

1

In January 2021, Scott filed a motion to compel Kikianne’s attendance at a deposition, citing the failure of Kikianne’s counsel to agree to a rescheduled date after having received a continuance of a properly noticed deposition. Scott also requested $10,000 in attorney fees and costs as a sanction that is “just and reasonable under the circumstances.” However, Scott’s briefing did not cite section 271 as a basis for the sanctions. Kikianne filed an opposition to Scott’s motion, disputing Scott’s claim that her deposition had been properly noticed. Thus, she contended, her counsel’s conduct was not wrongful and did not warrant sanctions. The court held a hearing and granted Scott’s motion to compel and request for sanctions. As relevant here, the court indicated satisfaction with Scott’s offer of proof regarding his request for attorney fees and costs as sanctions. Accordingly, it ordered Kikianne to pay $3,924 pursuant to Code of Civil Procedure sections 2023.010 and 2023.030 and to pay further sanctions in the amount of $6,000 pursuant to section 271. Kikianne appealed. DISCUSSION Section 271 permits a trial court to impose an award of attorney fees and costs as a sanction where the conduct of a party or their counsel “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.” (§ 271, subd. (a); see Featherstone v. Martinez (2022) 86 Cal.App.5th 775, 783.) Notice and an opportunity to be heard must be provided to the party against whom the sanction is proposed. (§ 271, subd. (b).) An award of sanctions under section 271 is reviewed for abuse of discretion and will be overturned “ ‘only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable