Tuesday, February 11, 2020

George v. Shams-Shirazi (Cal. Ct. App. - Feb. 11, 2020)

There's only one published opinion by the Court of Appeal today.  But it's worth talking about, if only briefly.

The question is how long one has to move for attorney's fees incurred after a final judgment.  There's no doubt that, normally, the statute says that you've got 60 days after the judgment to ask for the fees that you incurred leading up to that judgment.  But what about fees incurred thereafter?

In this family law case, there's a final judgment that award the mother sole physical and legal custody of the child.  Some time thereafter, the father filed a request to set aside that order, and later, a second request seeking the same relief.  Both were denied.

Then, around six months after the second denial, the mother sought attorney's fees as sanctions.  Which the trial court granted.  Father appeals, saying that the motion for fees wasn't timely because it wasn't filed within 60 days of the denial of the underlying motion -- which all parties agree was an appealable order.

But the Court of Appeal disagrees.  Justice Sanchez holds that the statutory 60 day rule only applies to fees arising before a judgment.  Here, they arose after.  So the statute doesn't apply.

But father's no idiot.  He says that the motion for reconsideration was itself a judgment, which is why it was appealable.   Which in turn means that the sanction request at issue was for fees leading up to that selfsame judgment, so the 60 day rule applies.

The Court of Appeal is not persuaded.  It may be an appealable order, Justice Sanchez says, but it's not the judgment.  The judgment was the order granting custody.  Whereas the denial of the motion to reconsider was an order.  So the fees were incurred post-judgment, so the statutory 60 day period still doesn't apply.

Okay.  You can see the reasoning here.  It's not indisputably rock solid, but it's definitely tenable, and it probably accords with our common understanding of what a "judgment" entails.

But as I neared the of the opinion, the question that was lingering in my mind throughout still persisted:  So what statutory period does apply?  I've already read 80 percent or so of the opinion, and while Justice Sanchez has told me why the text of the 60-day period doesn't apply, I was somewhat surprised that I had yet to hear "By contrast, the statutory time to appeal in this type of dispute is more properly governed by Rule . . . ."  Typically, you compare and contrast:  Rule X doesn't apply, whereas the text of Rule Y seems straightforward and governs.

At the end of the opinion, Justice Sanchez tells us what period does apply.  But I must admit, I was underwhelmed by the answer.

The Court of Appeal says that the relevant statutory timeline for requesting fees in this type of case is . . . nothing.  No rule.  No statutory deadline at all.

Which seems bizarre.  So the Legislature bothered to set a relatively short (60 day) deadline for your typical attorney fee request, but if you're seeking postjudgment fees (as parties often do), there's no deadline -- much less a short one -- at all?

Justice Sanchez says:  Yep.

The Court of Appeals responds only that just because there's no statutory deadline doesn't mean that you can wait forever, since your request for fees might potentially be barred by laches.  But because that common law doctrine requires a showing of prejudice, and there's no such showing here, the sanctions request here was okay.

Like I previously said, that seems weird to me.

I get the argument that the regular statutory deadline doesn't apply.  But if that's the only deadline we have, and if (as I believe is the case) it's either that deadline or nothing, and if there is a tolerable argument that the statute applies (which I also believe is the case), it seems pretty out on a limb to say that there's no deadline at all except for a common law laches limitation.  First, it seems unlikely to me that the Legislature would have intended this; when they set a short deadline for most things, I doubt they wanted other things to have literally no deadline at all apart from one incorporated from the common law.  Second, I doubt that laches is actually up to the task of preventing stale fee motions, as it'll be virtually impossible to show prejudice in most cases, and laches in any event does not provide a bright-line timing rule that both encourages motions by a set limit as well as grants the defendant definite repose after a certain time period -- all of which are definite purposes of a statutory timeliness period.

So I'd have been just fine with the opinion if it said that Rule 3.1702(b) didn't apply if a different Rule did.  But given the absence of the latter, I wonder if it really makes sense to hold the former.  Or even makes the world a better place.

Not that I'm upset that the father here gets sanctioned.  He may well deserve it.

But the rule that the case creates may not make sense.