Attorney's Fees Flashcards
The court shall ensure each party has access to legal representation including access early in the proceedings, to preserve each party’s rights by ordering, if necessary based on the _____, one party, except a governmental entity, to pay to the other party, or other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of _____.
income and needs assessments
maintaining or defending the proceeding
Fam. Code 2030
Inherent subject matter jurisdiction authorizing award of _____.
fees and costs
Fam. Code 2010(f)
Court shall rule on application for temporary attorney’s fees application within _____ of the hearing on the motion or order to show cause.
15 days
Fam. Code 2031(a)(2)
May make oral motion for ______
pendente lite fees
Fam. Code 2031(b)
Fee awards early in the case are ____ when there is a disparity in access to funds. Courts can no longer just _____.
mandatory
“reserve” until trial
Marriage of Knox (2022) 83 Cal.App.5th 15
The court may make an award where the amount is _____ under circumstances of the parties.
just and reasonable
Fam. Code 2032(a)
Attorneys must demonstrate ____ in support of the fee application for court to be adequately informed as to reasonableness of fees.
core competency
Marriage of Cueva (1978) 86 Cal.App.3d 290
Fees awarded must be justified as to the amount based upon the _____, etc.
attorney’s work, experience
Marriage of Keech (1999) 75 Cal.App.4th 860
The record must establish the reasonableness of fees including _____.
efforts of counsel
Marriage of Rosen (2002) 105 Cal.App.4th 808
It was proper for court to deny a fee request where they made a finding that the case was ____ by the party requesting fees.
over litigated
Marriage of Huntington (1992) 10 Cal.App.4th 1513
Court may reduce or deny fees when billing records are _______, etc. Contemporaneous time records are essential.
contradictory, imprecise
Taylor v. County of Los Angeles (2020) 50 Cal.App.5th 205
It was proper for court to deny fees because block billing made it difficult for court to determine whether the fees were _____. The burden is on the party requesting fees.
reasonably necessary
Marriage of Nassimi (2016) 3 Cal.App.5h 667
In making attorney’s fees orders, the court shall take into consideration the _____.
4320 factors
Fam. Code 2032(b)
Despite disparity in incomes, the court can deny further fees where parties jointly ______.
litigate themselves into financial oblivion
Marriage of Winternitz (2015) 235 Cal.App.4th 644
The court may deny fees if determined that party _____
over-litigated.
In this case, the trial court concluded at least 4 days of trial were “wholly unnecessary.”
Marriage of Nakamoto & Hsu (2022) 79 Cal.App.5th 457
The court improperly ordered 2030 fees under premise of 271 (bad conduct), without a filed request, and without making any of the _____.
requisite findings in 2032
Mooney v. Superior Court (2016) 245 Cal.App.4th 523
Dicta that courts may require a party to ____ to pay fees under appropriate circumstances.
borrow money
Marriage of Hofer (2012) 208 Cal.App.4th 454
It was abuse of discretion to deny attorney’s fees where there was a showing of _____. Additionally, whether or not property subject to litigation could be used to secure fees (i.e. FLARPL), is irrelevant until the court does the proper analysis laid out in sections 2030-2032. Court erred by also not reviewing _____.
considerable disparity
billing statements
Marriage of Tharp (2010) 188 Cal.App.4th 1295
Abuse of discretion to deny attorney’s fees without considering the _____ and the other party’s ____.
needs of the requesting party
ability to pay
Marriage of Hatch (1985) 169 Cal.App.3d 1213
_____ is not a bar to receive fees considering the circumstances of the parties.
Considerable wealth
Marriage of O’Connor (1997) 59 Cal.App.4th 877
Substantial assets is not, alone, a reason to deny fees when there is _____.
a large disparity
Court erred to deny W fees when W had $700k in assets but H had $2M. Also found that H caused significant fees due to his commingling of assets.
Marriage of Ciprari (2019) 32 Cal.App.5th 83
Award/receipt of spousal support should not _____ when determining a fee contribution for need.
generally be considered
Marriage of Barth (2012) 210 Cal.App.4th 363
Continuous parental gifts (contributions) to living expenses may be _____.
characterized as income
Marriage of Alter (2009) 171 Cal.app.4th 718
Expected investment income and liquid assets are _____.
considered when determining need
Marriage of Duncan (2001) 90 Cal.App.4th 617
Cannot deny fees solely due to ____. If there is disparity in access to funds and payor has ability to pay for representation of both pirates, then award of fees is ____.
one-half of assets receiving in division of divorce
mandatory
Marriage of Morton (2018) 27 Cal.App.5th 1025
Party who fails to _____ may lose their right of appeal regarding attorney’s fees.
comply with financial disclosures
Marriage of Hofer (2012) 208 Cal.App.4th 454
The court should take into account support orders when determining the ability of one party to pay a _____. It was error for the court to presume the payor’s parents would provide the funds to pay the lump sum.
lump sum attorney’s fees order
Marriage of Schulze (1997) 60 Cal.App.4th 519
Unreported _____ can be the basis for determining ability to pay.
income
Marriage of Lister (1984) 152 Cal.App.3d 411
Fact the community business paid payor’s attorney’s fees can be determinative in _____.
their ability to pay
Marriage of Czapar (1991) 232 Cal.App.3d 1308
Even indirect control of assets from which a _____ can be determinative of their ability to pay.
party enjoys substantial benefit
Marriage of Dick (1993) 15 Cal.App.4th 144
Payment by parent to one party’s attorney on their behalf is _____ in determining ability to pay.
properly considered
Marriage of Smith (2015) 242 Cal.App4th 529
The court has ____ to order costs (i.e. expert costs, etc.)
broad discretion
Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272
Absent statutory authority or permissible contractual provision, _____ is not the standard for issuing needs based fee award.
prevailing party
Marriage of Hublou (1991) 231 Cal.App.3d 956
The merits of a party’s argument is not the standard for issuing attorney’s fees. It was error for the court to state the motion was brought in good faith so no _____.
reason to shift the burden of fees
Marriage of Dietz (2009) 176 Cal.App.4th 387
The court may order payment of an award of attorney’s fees from any type of ____.
property, whether community or separate
Fam. Code 2032(c)
The court shall _____ the original award as reasonably necessary for the prosecution or defense of a proceeding.
augment or modify
Fam. Code 2030(c)
Not necessary to meet ____ to augment or modify fees.
standards of CCP 1008 (reconsideration)
Marriage of Hobdy (2004) 123 Cal.App.4th 360
No single fee order is _____ as it can be augmented or modified as necessary.
“all or nothing”
Marriage of Cryer (2011) 198 Cal.App.4th 1039
If ordered that a party not the spouse shall pay fees, it shall be limited to reasonably necessary related to the _____.
issue with that party only
Fam. Code 2030(d)
Marriage of Jovel (1996) 49 Cal.App.4th 575
A court may order one joined party to pay the fees of ____.
another joined party
Marriage of Bendetti (2013) 214 Cal.App.4th 863
A court may order fees be paid by a trust joined to the case, and it is not subject to a _____.
finding of bad faith by the trustee
Marriage of Wendt & PUllen (2021) 63 Cal.App.5th 647
Award of attorney’s fees may be made directly to ____. The court may also redirect payment of fees to a successor counsel.
counsel
Fam. Code 272
Pre-judgment the client must expressly or impliedly authorize a discharged attorney to _____. However, this is not the same for provisions in a judgment because the attorney is _____.
move for payment of attorneys fees
now a judgment creditor
Marriage of Green (2006) 143 Cal.App.4th 1312
A former attorney may make a request for fees from the other party so long as the former client _____.
has given implied consent
Marriage of Borson (1974) 37 Cal.App.3d 632
Client has authority to _____ at any time before the hearing on the Borson motion.
withdraw consent
Marriage of Read (2002) 97 Cal.App.4th 476
Attorney does not have standing _____ a Borson motion as technically would be “motion” of the party (not the attorney) to get fees from their spouse.
to appeal
Marriage of Tushinsky (1988) 203 Cal.App.3d 136
Either party may ______ in community real property to pay reasonable attorney’s fees in order to retain or maintain legal counsel in a proceeding. Notice must be given to the other party at least ____ before the encumbrance is recorded. The non-encumbering party may file an ex parte objection to the FLARPL.
encumber only that party’s interest
15 days
Fam. Code 2033 (FLARPL)
A FLARPL does not affect the court’s ability to determine the _____, and whether or not the fees requested are reasonable. The court can take into account litigation conduct as this helps determine reasonability. The court does not need to join the attorneys to reduce an award on a FLARPL.
amount of fees that should be paid
Marriage of Turkanis and Price (2013) 213 Cal.App.4th 332
The court may deny a FLARPL upon a finding it would result in _____ AND may limit the amount of the FLARPL upon a _____.
unequal division of property
showing of good cause
Fam. Code 2034(a)
The court has jurisdiction to _____ from the existence of a FLARPL.
resolve any dispute arising
Fam. Code 2034(c)
The court has the authority to limit the FLARPL even _____.
after it is recorded
Marriage of Bittenson (2019) 41 Cal.App.5th 333
It is crucial for attorneys to have _____. The trial court used sound bases for reducing attorney’s fees to $90,000 because the court found Plaintiffs conducted litigation that was less than civil.
civility in litigation and minimize tangential distractions
Karto v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734
The court shall ensure each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs, one party to pay the other, whatever amount reasonably necessary for attorney’s fees and costs of ______ during the pendency of the proceeding.
maintaining or defending the proceeding
Fam. Code 7605
The court may order reasonable fees of counsel, expert, and guardian ad litem, and other costs including _____, to be paid by the parties in proportions and at times determined by the court. The court may apply the standards set forth in 2032 and 7605 in making determination.
genetic testing
Fam. Code 7640
Continuous parental gifts (contributions) to living expenses may impact ______ in paternity action.
fee award
Kevin Q. v. Lauren W (2011) 195 Cal.App.4th 633
Fees may be awarded by the court when a guardianship proceeding is consolidated with a family law proceeding and the issue to be resolved is custody of a _____.
minor child of the marriage
Guardianship of Paduano (1989) 215 Cal.App.3d 346
Court cannot order a fee award to the other spouse in defending another proceeding unless it is _____. Whether it is related involves consideration of access to representation in the family law proceeding because of the separate action.
a “related” matter
Marriage of Seaman & Menjou (1991) 1 Cal.App.4th 1489
When one party files a separate action in an attempt to gain an unfair advantage of the other, the court has discretion to _____.
award fees of a disadvantaged spouse
Marriage of Green IV (1992) 6 Cal.App.4th 584
In proceedings between H and W other than family law, the court has discretion to award fees to a spouse in the related proceeding. Consolidation is not a ______ motive.
prerequisite nor is improper
Askew v. Askew (1994) 22 Cal.App.4th 942
Award of fees in another proceeding is appropriate where one spouse has ______ the separate action in an effort to _____ to representation in the family law proceeding.
initiated or motivated
obstruct a party’s access
Neal v. Superior Court (2001) 90 Cal.App.4th 22
Court can award fees and costs to the prevailing party related to _____. Ability to pay is not at issue but _____ still is.
contract provisions (i.e. disputes of settlement agreements)
reasonableness of fees
Marriage of Sherman (1984) 162 Cal.App.3d 1132
Attorney fee provision in stipulated judgment or MSA for prevailing party when court is sought to enforce any provision is _______.
valid and enforceable
Pont v. Pont (2019) 31 Cal.App.5th 428
Any action on a contract, where the contract specifically provides that attorney’s fees and costs which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party; then the party who is determined to be the _____, shall be entitled to reasonable attorney’s fees.
prevailing on the contract, whether specified in the contract or not
Civil Code 1717
“Prevailing party” includes _____. If not monetary (i.e. equitable), the court shall determine the prevailing party.
(1) the party with a net monetary recovery;
(2) the defendant in whose favor a dismissal is entered;
(3) defendant where neither party obtains relief;
(4)defendant as against those plaintiffs who do not recover any relief against that defendant
CCP 1032
When multiple claims are presented, the court must consider _____ to determine the net “winner” between the parties.
aggregation of results
Harris v. Rojas (2021) 66 Cal.App.5th 817
If court appoints private counsel, counsel shall receive a _____ and expenses, the amount of which is to be determined by the court.
reasonable sum for compensation
Fam. Code 3153(a)
The court can order parties (including claimants) to pay private counsel _____.
attorney’s fees
Marriage of Perry (1998) 61 Cal.App.4th 295
The court may require the parties to advance the costs of minor’s counsel from _____.
any source (including CP)
Marriage of Metzger (2014) 224 Cal.App.4th 1441
Court has requirement to _______ between the parties any fees or costs of custody evaluation.
determine and allocate
CRC 5.220(d)(1)(D)
Court must hold hearing to determine ______ and/or allocation of fees.
reasonableness of custody evaluator fees
Marriage of Laurenti (2007) 154 Cal.App.4th 395
Error for court not to set _____ on reasonableness of evaluator’s fees.
independent hearing
Marriage of Adams and Jack A. (2012) 209 Cal.App.4th 1543
If a report involving psychological testing of children or recommendations of custody/visitation is submitted to the court, it shall be set _____, and only released to the party, party’s attorney, law enforcement officer, judicial officer, or other upon court order.
as confidential
Fam. Code 3025.5
If an _____ of a written confidential report is made, the court may impose a reasonable _____ on the disclosing party unless the court finds the disclosing party acted with substantial justification.
unwarranted disclosure
monetary sanction
Fam. Code 3111(d)
A disclosure is unwarranted if it is done either _____, and is not in the best interest of the child.
recklessly or maliciously
Fam. Code 3111(f)
Attorneys can be sanctioned even if the _____. “Intentional” disclosure is sufficient.
party (client) is not
Marriage of Anka & Yeager (2019) 31 Cal.App.5th 1115
Disclosure sanctions to attorney even if not a party to the action as the _____.
statute specifies “person” not litigant
Shenefield v. Shenefield (2022) 75 Cal.App.5th 619
Upon a noticed motion, court shall issue order for attorney’s fees for prevailing petitioner. Upon a noticed motion, court may issue order for attorney’s fees for prevailing respondent ONLY upon a showing by preponderance of evidence, that petition is ______ or solely intended to abuse, intimidate, or _____.
frivolous
cause unnecessary delay
Fam. Code 6344
Failure to use judicial council forms not _____ AND fees do not have to be requested at time of DV. 6344 fees may be deferred until a _____.
fatal to request
separate request after the DV
Fatan v. Ahmedo (2015) 236 Cal.App.4th 1160
There is nothing in 6344 that excludes the right to fees under ______ i.e. 7605 or 2030.
another provision
C.T. v. K.W. (2021) 71 Cal.App.5th 679
The court may order a person (party or attorney), after written notice and an opportunity to be heard, to pay reasonable ____ to the court or to an aggrieved person, or both, for failure without good cause to _____. The sanction must not put an _____ on the person ordered to pay.
monetary sanctions
comply with the applicable rules
unreasonable financial burden
CRC 5.14
The court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney ______ and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award cannot impose an unreasonable financial burden on the party being sanctioned. Need of fees is not relevant.
further or frustrates the policy of the law to promote settlement of litigation
Fam. Code 271
Due process requires ____ for sanctions are imposed. The amount of sanctions should be scaled to payor’s ability to pay, including the affect it would have on a party’s ability to support his/her children.
adequate notice
Marriage of Duris & Urbany (2011) 193 Cal.App.4th 510
Service of a ______ is sufficient for placing the other party on notice. Violating the privilege by attaching a mediation brief and/or breaching an agreed upon protocol may serve as a basis for sanctions.
notice of intent to seek sanctions
Marriage of Davenport (2011) 194 Cal.App.4th 1507
Request of 271 sanctions in a response is not considered _____
“affirmative relief.”
Marriage of Perow & Uzelac (2019) 31 Cal.App.5th 984
An overreaching ______ can be the basis for sanctions.
settlement proposal
Here, in a move away case, father wanted to be relieved of child support if he allowed mom to move and an agreement she give him china and silverware. The court found it overreaching and sanctionable.
Marriage of Abrams (2003) 105 Cal.App.4th 979
Taking an unreasonable _____ may result in sanctions.
position in litigation
Marriage of Corona (2009) 172 Cal.App.4th 1205
Taking an unreasonable position and shopping for an attorney willing to support the ______ is more than taking a hard stand and aggressively litigating, and such behavior may subject a party to sanctions.
unreasonable position (i.e. firing a reasonable attorney)
Marriage of Quay (1993) 18 Cal.App.4th 961
Lack of cooperation, creating unnecessary delay, failure to attempt settlement, and forgery (POS) are all grounds for sanctions. Sanction not unreasonable where payor had amount coming from _____ and therefore had the ability to pay.
proceeds of a sale
Marriage of Falcone and Fyke II (2012) 203 Cal.App.4th 964
Bringing unreasonable contempt to ______ frustrates the policy of the law and is sanctionable.
force other party to acquiesce to demands (in this case custody demands)
Parker v. Harbert (2012) 212 Cal.App.4th 1172
Failure to disclose _____ may be considered uncooperative conduct.
SP (i.e. balances of accounts on I&E)
Marriage of Simmons (2013) 215 Cal.App.4th 584
Court cannot sanction a party just for taking positions which the _____ with and/or attempting to disqualify a judge for perceived bias.
court disagrees
Featherstone v. Martinez (2022) 86 Cal.App.5th 775
Although conduct of counsel can be the basis for an award of sanctions, the award is only made ____.
against the party
Marriage of Daniels (1993) 19 Cal.App.4th 1102
It is not required for sanctions to be only issued at _____ nor is it required to state the amount of sanctions sought.
the end of the case
Marriage of Feldman (2007) 153 Cal.App.4th 1470
Provides protection for communications made in connection with proceedings of all _____ whether state or municipal.
legislative bodies
Civil Code 47
Statements made in pleadings and affidavits filed in divorce actions _____ under section 47 (so not privileged) unless under oath, without malice, and on reasonable grounds.
are not privileged
Silberg v Anderson (1990) 50 Cal.3d 210
Sanctions may not be awarded to a party’s attorney when it is that attorney who is requesting the sanctions for the _____.
sole benefit of the attorney
Webb v. Webb (2017) 12 Cal.App.5th 876
Sanctions can be issued for _____ that result from the offending individual’s behavior.
anticipated expenses
Menezes v. McDaniel (2019) 44 Cal.App.5th 340
Because 271 sanctions is an award for attorney’s fees, they cannot be requested by a _____.
self-represented litigant
Marriage of Erndt & Terhorst (2021) 59 Cal.App.5th 898
Postjudgment requests for sanctions can be denied under _____ if delay in filing unfairly prejudices the other party.
laches
George v. Shams-Shirazi (2020) 45 Cal.App.5th 134
Award of 271 sanctions must be tethered to _____, but may include interest on unpaid attorney fee bill.
attorney’s fees and costs
Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142
Joined party’s frivolous motion to disqualify party’s attorney is _____. The voluntary dismissal of the joinder complaint does not divest the court of ordering sanctions against the almost joined party.
subject to sanctions
Marriage of Blake & Langer (2022) 85 Cal.App.5th 300
Even as sanctions, the court must scale the fees so as not to impose an _____ on the sanctioned party.
unreasonable financial burden
Marriage of Norton (1988) 206 Cal.App.3 53
Discovery sanctions under the CCP can be issued against parties and _____.
their attorneys
Marriage of Zimmerman (2010) 183 Cal.App.4th 900
The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order unless they acted ______ or that other circumstances make the imposition of the sanction unjust.
with substantial justification
CCP 2019.030(c)
Misuse of the discovery process (subject to sanctions) include but not limited to: (1) persisting over objection to obtain information _____ of discovery; (2) using discovery method in a manner not in compliance with code; (3) employing method or manner causing unwarranted annoyance, embarrassment, or oppression, or undue burden and expense; (4) failing to ______ to an authorized form of discovery; (5) making, without substantial justification, an _______ to discovery; (6) making evasive response; (7) disobeying a court order to provide discovery; (8) making or opposing unsuccessfully, without substantial justification motion to compel; and (9) failure to confer in _____ attempt to resolve informally any dispute regarding discovery.
outside of scope
respond or submit
unmeritorious objection
reasonable and good faith
CCP 2023.010
The court may, after notice and opportunity to be heard, impose monetary sanctions, issue sanctions, evidence sanctions, _______, or contempt sanction.
terminating sanctions
CCP 2023.030
A trial court may order a party or attorney to pay the reasonable expenses including attorney’s fees, incurred by another as a result of actions or tactics, ______, that are frivolous or solely intended to cause unnecessary delay. Ability to pay is _____. Must follow 128.7 procedures for filing motion.
made in bad faith
NOT a factor
CCP 128.5(a)
Frivolous means totally and completely _____or for the sole purpose of harassing an opposing party.
without merit
CCP 128.5(b)(2)
Failure to appear at trial dates and/or claiming ready for trial, when not, ______.
could equate frivolous
Marriage of Sahafzadeh-Taeb & Taeb (2019) 39 Cal.App.5th 124
Claims that are barred by res judicata, judicial admissions and judicial estoppel are ______ and grounds for sanctions.
objectively unreasonable
Bucur v. Ahmad (2016) 244 Cal.App.4th 175
In addition to award under (a), the court may issue additional ______ if a convicted felon brings action against victims or families of victims.
punitive damages
CCP 128.5(d)
By presenting to the court a pleading or other paper, the party and attorney are certifying that to the best of their knowledge, information and belief: (1) it is not being presented primarily for an ______; (2) the claims, defenses and other legal contentions are ______; (3) the allegations and contentions have evidentiary support or likely to have evidentiary support; and (4) denials of factual contentions are warranted on the evidence.
improper purpose
warranted by existing law (not frivolous)
CCP 128.7(b)
Notice for 128.7 sanctions shall be served but not filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, pleading, claim, defense, etc. is _____.
withdrawn or appropriately corrected
CCP 128.7(c)(1)
A court may impose reasonable sanctions, not to _____, payable to the court for any violation of a lawful court order done without good cause or substantial justification.
exceed $1,500
CCP 177.5
The court may order attorney’s fees collateral to an issue on appeal while ______
the appeal is pending. (i.e. here F appealed the court’s finding he was the F and the attorney’s fees did not divest the appeals court of jurisdiction).
Sherry H v. Thomas B. (1988) 203 Cal.App.3d 1500
Fees on appeal require determination of (1) need for the award; (2) ability to pay; (3) appeal _____; and (4) reasonable grounds for appeal.
taken in good faith
Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247
Failure to meet the burden of showing court’s ruling was unsupported by substantial evidence does not meet the standard of ______ or reasonable grounds for the appeal. This resulted in denial of appellate fees.
appealing in good faith
Marriage of Nakamoto & Hsu (2022) 79 Cal.App.5th 457
Court may order a party or attorney to pay sanctions to the _____ if determined that appeal is frivolous.
court clerk
Marriage of Schnabel (1994) 30 Cal.App.4th 747
