Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when she allegedly slipped and fell on ice in the parking lot of an apartment building owned by defendant Norstar Apartments, LLC and managed by defendant Siara Management, Inc. We conclude that Supreme Court properly denied defendants' motion for summary judgment dismissing the complaint. Although defendants met their initial burden of establishing as a matter of law that there was a storm in progress at the time of the accident ( see Chapman v Pyramid Co. of Buffalo, 63 AD3d 1623; Brierley v Great Lakes Motor Corp., 41 AD3d 1159, 1160), the evidence submitted by plaintiff, particularly the detailed affidavit from her expert meteorologist and the accompanying weather reports, raised an issue of fact whether the ice in question had formed prior to commencement of the storm ( see Schuster v Dukarm, 38 AD3d 1358; Williams v Patrick, 30 AD3d 1059; see also Bullard v Pfohl's Tavern, Inc., 11 AD3d 1026). We reject defendants' further contention that they are entitled to summary judgment because they established that plaintiff fell on snow that had recently fallen rather than ice previously formed. Plaintiffs deposition testimony was sufficient to raise an issue of fact in that regard as well.
The record evidence before the family court at the time of the hearings on the attorney fees requests established that there was a considerable disparity of income and assets between Mary Beth and Casey, a strong indication Mary Beth was entitled to a needs-based award of additional attorney fees. Instead of undertaking this analysis, the family court found, without a hearing on the issue, that Mary Beth should have employment that paid her at least minimum wage. It also commented that Mary Beth could pay her legal fees by providing Bruder with a lien against her share of community property. Mary Beth provided Bruder with a lien, which the family court expunged.
In the case of In re Marriage of Hatch (1985) 169 Cal.App.3d 1213 [ 215 Cal.Rptr. 789], the appellant wife argued that the trial court had abused its discretion in denying her an award of attorney fees. In Hatch, the trial court summarily denied the wife's motion for attorney fees pendente lite. The appellate court reversed, noting that it was an abuse of discretion to deny the motion without considering the needs of the requesting party and the other party's ability to pay. ( Id. at p. 1216.) In that case the evidence demonstrated that the wife had no income other than spousal and child support. In addition she stated that she had been unable to pay her attorney any fees. ( Id. at p. 1217.) The appellate court explained that it was an abuse of discretion to deny fees where one spouse demonstrated an inability to pay his or her attorney fees while showing the other spouse had the ability to pay. ( Id. at p. 1219.)
Conclusion (3) The public policy purpose behind sections 2030 and 2032 is "`leveling the playing field' and permitting the lower-earning spouse to pay counsel and experts to litigate the issues in the same manner as the spouse with higher earnings." (Gray Wagner, Complex Issues in Cal. Family Law, Vol. I, Complex Financial Issues in Determining Support, Fees and Sanctions (2009) Public Policy, Purpose and Philosophy Underlying Support, Professional Fees and Sanctions, § 12.13.) Attorney fees, financial experts, other experts, witness fees, and other costs are all awardable. ( Ibid.) A spouse should not have to utilize support payments designed to pay living expenses to fund litigation in the dissolution proceeding. ( Ibid.)
In order to level the playing field, funds must be available to Mary Beth to pay for attorneys, other experts, and costs of litigation, and those funds must be available and accessible prior to the conclusion of the case. The matter will be remanded so that a judicial officer can undertake an analysis of the billings supporting the attorney fees request and make a needs-based analysis. Until those functions have been performed, there is no need to consider or to address Mary Beth's contentions regarding the use of her separate property or her interest in community property as a source of payment of attorney fees.
III. Attorney Fees as Sanctions
Mary Beth sought an award of attorney fees as sanctions from Casey pursuant to sections 271 and 2107, subdivision (c), as set forth in the case of In re Marriage of Feldman (2007) 153 Cal.App.4th 1470 [ 64 Cal.Rptr.3d 29] ( Feldman), which the family court denied. Mary Beth contends the family court abused its discretion in denying the award because the record is replete with examples of instances where Casey engaged in bad faith conduct as it pertains to discovery and breached his fiduciary duty to disclose his assets and debts accurately and fully.
Standard of review
We review a family court's decision to grant or deny attorney fees under section 271 or 2107, subdivision (c) under an abuse of discretion standard. ( Feldman, supra, 153 Cal.App.4th at p. 1478.) "While sanctions are discretionary, the term judicial discretion implies absence of arbitrary determination, capricious disposition, or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. To exercise the power of judicial discretion, all the material facts must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision. [Citation.] Therefore, the court must examine the entire record in determining whether the ultimate sanction should be imposed. [Citations.]" ( Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796 [ 149 Cal.Rptr. 499].)
Section 271 (4) Section 271 provides that a family court may impose an award of attorney fees and costs "in the nature of a sanction" where the conduct of a party or attorney "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).) A party requesting an award of attorney fees and costs under section 271 is not required to demonstrate any financial need for the award. ( Id., subd. (a).)
Misuse of the discovery process may result in the imposition of a variety of sanctions, such as payment of costs and evidence preclusion. ( Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1214 [ 45 Cal.Rptr.3d 265].) Such misuse includes (1) failing to respond or submit to authorized discovery, (2) providing evasive discovery responses, and (3) disobeying a court order to provide discovery. ( Ibid.) A family court has broad discretionary powers to enforce its discovery orders and may impose suitable sanctions. ( In re Marriage of Michaely (2007) 150 Cal.App.4th 802, 809 [ 59 Cal.Rptr.3d 56].)
(5) Sanctions under section 271 are appropriate whenever a party's dilatory and uncooperative conduct has frustrated the policy of promoting settlement of litigation and cooperation among litigants. ( Feldman, supra, 153 Cal.App.4th at pp. 1479-1480.) There is no requirement that a party suffer any actual injury as a prerequisite to requesting an award of attorney fees as sanctions under section 271. ( Feldman, at p. 1480.)
Here, by the time Mary Beth' s request for an award of attorney fees pursuant to section 271 was before the family court, the history of the case had established that Casey had failed to respond to discovery timely and properly, requiring Mary Beth to file several motions to compel responses to discovery, which were granted. After the motions to compel were granted and Casey was ordered to respond, he failed to respond, requiring Mary Beth to file orders to show cause regarding contempt. Casey also failed to pay an earlier award of attorney fees in a timely fashion. The discovery referee, Karby, found that some of Casey's tactics were without substantial justification.
Yet, despite this history, the family court denied any award of attorney fees under section 271, stating that Mary Beth had engaged in "prolonged and protracted discovery efforts regarding issues which are far removed from the facts before the court." The family court's statement is erroneous and evidences an abuse of discretion for three reasons.
First, Mary Beth's efforts regarding discovery were taken pursuant to the case management plan.
Second, if the discovery motions presented by Mary Beth had sought discovery of irrelevant matter, the family court should have denied the motions. The family court cannot grant multiple motions to compel responses to discovery and then assert that the motions were directed at "issues which are far removed from the facts before the court." Such a comment ignores the family court's prior orders and findings on discovery, as well as the entire procedural history in the case.
Third, the family court's comment also ignores the finding of the court-appointed discovery referee that Mary Beth's efforts in discovery greatly assisted the discovery referee and that Casey's antics in avoiding discovery were without good cause.
(6) "Attorney fees are proper where a spouse engages in conduct that frustrates a settlement and increases the cost of litigation. [Citation.]" ( In re Marriage of Mason (1996) 46 Cal.App.4th 1025, 1028 [ 54 Cal.Rptr.2d 263].) While attorney fees and costs imposed under section 271 are in the nature of a sanction, the requisite wrongs are limited. Section 271 does not require that the sanctioned conduct be frivolous or taken solely for the purpose of delay. Rather, the statute is aimed at conduct that frustrates settlement of family law litigation. Expressed another way, section 271 vests family law courts with an additional means with which to enforce this state's public policy of promoting settlement of family law litigation, while reducing its costs through mutual cooperation of clients and their counsel. "Thus, a party who individually, or by counsel, engages in conduct frustrating or obstructing the public policy is thereby exposed to liability for the adverse party's costs and attorney fees such conduct generates." ( In re Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1110 [ 23 Cal.Rptr.2d 865] [construing predecessor statute].)
The history of Casey's antics in thwarting discovery and the numerous motions to compel discovery that Mary Beth was forced to bring against Casey clearly demonstrate that sanctions under section 271 were warranted. ( Feldman, supra, 153 Cal.App.4th at pp. 1479-1480.)
"Somewhere along the line, litigation must cease." ( In re Marriage of Crook (1992) 2 Cal.App.4th 1606, 1613 [ 3 Cal.Rptr.2d 905].) Casey has yet to absorb this message because the family court throughout this case failed to sanction his conduct appropriately. A family law litigant who engages in conduct that increases litigation costs is subject to the imposition of attorney fees and costs as a sanction and it was an abuse of discretion for the family court to refuse to impose those sanctions on Casey. ( In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177 [ 110 Cal.Rptr.2d 111].)
Section 2107 (7) Section 2107, subdivision (c) similarly is not "aimed at redressing an actual injury." ( Feldman, supra, 153 Cal.App.4th at p. 1479.) Section 2107, subdivision (c) requires a family court to impose monetary sanctions and award attorney fees if a party fails to comply with any portion of the Family Code that addresses a spouse's fiduciary duty of disclosure in marital dissolution proceedings. ( Feldman, at p. 1477.) "Sanctions shall be in an amount sufficient to deter repetition of the conduct or comparable conduct. . . ." (§ 2107, subd. (c).)
The fiduciary duty of the parties under the Family Code is to make "a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest." (§ 2100, subd. (c).) The disclosure "must be made in the early stages of a proceeding for dissolution of marriage . . . regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties." ( Ibid.) The duty of disclosure is ongoing and requires each party to update and augment any prior disclosures fully and accurately. ( Feldman, supra, 153 Cal.App.4th at p. 1476.)
Even before Casey's dilatory tactics in discovery, he effectively stalled the litigation for 10 months by making a claim that a premarital agreement resolved all the property issues. Casey thus had breached his fiduciary duties.
In October 2007, Casey had been asked to disclose and characterize fully the assets and debts of the marriage by completing the schedule of income and assets and answering form interrogatories. Instead of making an accurate and full disclosure, Casey asserted there was a signed premarital agreement and claimed everything owned by the couple or earned by him during the marriage was his separate property. After Mary Beth incurred additional legal fees to address this allegation, the family court finally determined at a hearing, at which Casey and Harbottle did not appear, that no such agreement existed.
As with the denial of an award of attorney fees under section 271, the family court's abuse of its discretion was equally evident in its denial of an award of attorney fees as sanctions under section 2107. Section 2107, subdivision (c) requires the family court to impose sanctions for a breach of a party's fiduciary obligations in a family law case. There is overwhelming evidence in the record that Casey breached his fiduciary obligation to report income, assets, and obligations fully and accurately, a breach that is most clearly shown by Casey's false assertion of the existence of a premarital agreement providing all income and assets to be his separate property.
Casey has failed to make a full and accurate disclosure of income and assets throughout the case, even after it was determined that no signed premarital agreement existed. As of June 2009, after the attorney fee requests had been heard and determined, Casey still had not provided the family court's appointed forensic accountant with all of his financial data in order that an accurate calculation of income could be made. The accountant opined that income projections for Casey could be short by $100,000 or more.
The plain language of section 2107, subdivision (c) required the family court to award Mary Beth attorney fees by way of sanctions "in an amount sufficient to deter repetition of the conduct or comparable conduct." ( Ibid.) This, the family court failed to do.
Conclusion
The family court ignored the procedural history, the record evidence, and the plain language of the statutes when it denied sanctions under both sections 271 and 2107. The family court failed to consider (1) the record evidence of the multiple orders against Casey granting Mary Beth's motions to compel production of documents and further answers to interrogatories, (2) the family court's criticism on the record of Casey and Harbottle's approach to the litigation, (3) the discovery referee's finding that Casey frustrated and blocked discovery, without good cause, and (4) Casey's failure to disclose fully and promptly all assets and obligations and his false representation that a signed premarital agreement existed. The family court's failure to consider this evidence and the procedural history of the case indicates an abuse of its discretion.
On remand, the family court will be directed to award sanctions against Casey, payable to Mary Beth, pursuant to sections 271 and 2107. When making the award, the family court shall consider Casey's dilatory tactics and lack of full fiduciary disclosure and the policy of imposing sanctions in an amount sufficient to deter future similar conduct.
IV. Reassignment of Case
This case was assigned to Judge William Silveira, Jr., for all purposes after the initial orders made on December 18, 2007. Mary Beth has asked that this case be assigned to a different judicial officer on remand. Mary Beth contends the record establishes doubt as to whether the family court judge handling the case can be impartial. Casey contends such a claim by Mary Beth is "outrageous." We agree that an assignment to a different judicial officer is warranted.
Factual summary
There are multiple areas in which the record discloses an abuse of discretion by Judge Silveira. We previously discussed the rulings on the attorney fees and sanctions requests in this opinion, concluding the family court abused its discretion in denying those requests. We now summarize these scenarios, setting forth in further detail what transpired and the comments by Judge Silveira.
On March 21, 2008, Dr. Bernstein submitted his custody evaluation report. Bernstein noted that Casey was inconsistent in responding to evaluation questions, which "suggested a tendency to be careless or inattentive." Bernstein also noted that Casey managed "conflict by excessive denial and repression of emotions" and showed a tendency to be "passive-dependent and demanding in relationships." "Self-absorbed, he had difficulty meeting his needs in close personal relationships." Bernstein further noted that Casey appeared to have "a low frustration tolerance, he may show poor control of anger." Bernstein stated that Casey's "effort to present a positive self-image yielded a defensive profile that may understate the extent and degree of psychological problems."
Bernstein described Mary Beth as responsive to questions, calm, and composed. Bernstein felt she lacked insight, because she "did not understand what ha[d] unfolded with" Casey and remained "invested in preserving the marriage." Mary Beth was described as generally presenting as a "confident, resilient and optimistic person." Bernstein also noted, however, that Mary Beth had "self-doubt regarding her sense of adequacy" and was "uncomfortable with interpersonal conflict, avoiding confrontation and forgiving others readily."
Bernstein also interviewed the children. Brandon was in the ninth grade. Brandon asserted that Casey had "completely shut us out for two years" and had been focused solely on his girlfriend, W.S., during that time. W.S. had been hired by the family as a babysitter for the children when she was 16. Brandon believed his father was still involved with W.S. Brandon conveyed a lack of respect for his father and stated he "can't trust" his father. Brandon reported that during the first six months after his parents separated, his mother spoke constantly about the situation, but that no longer occurred. His father had begun "buying us stuff' and "doing fun stuff' since the separation.
Chelsea, a seventh grader at the time, stated that she did not like Mary Beth because Mary Beth "always" was "mean to me" and favored Hayley, the younger daughter. Chelsea wanted Mary Beth to "stop telling all these lies about my dad" after the separation. She believed her father when he stated the marriage ended because Mary Beth "was always complaining."
Hayley, a second grader at the time, described Mary Beth as "nice" and Casey as "mean" and "always yelling." Hayley said her father told the children that their mother "kicked him out" and their mother stated their father "left on his own." Hayley had reported seeing W.S. come out of the shower wearing only a towel and then lie down on the bed with Casey.
The therapist who had provided marital counseling, Colleen Richards, also was contacted by Bernstein. She opined that Casey undermined Mary Beth's attempts to be a more effective parent. When Mary Beth would assign a chore to a child and withhold a privilege if not completed, Casey viewed this as unreasonable and would buy the child something to compensate for Mary Beth's actions. Richards also worked with the children and reported that Chelsea had a tendency to "exaggerate and make things up." Both Chelsea and Brandon reported that on overnight visits with their father, he usually slept until noon or 1:00 p.m.
When Bernstein interviewed Casey and Mary Beth together, Casey consistently "conveyed anger and contempt" for Mary Beth. Casey claimed that Mary Beth "mistreated" the children and was "hateful and disrespectful to the children."
Bernstein concluded that the "mutual anger of the parents precluded their abilities to perceive the other accurately and empathically." Casey showed poor judgment, was self-absorbed, inclined to manipulate others, and neglected his parental responsibilities and the interests of his children. Mary Beth tended to avoid unpleasant realities and, when confronted with an undesirable reality, reacted impulsively. When very emotional, Mary Beth appeared to be "vulnerable to misperceiving reality."
Bernstein found that the children were "polarized" and that Casey's incidents of "excessive physical discipline" seemed to be "isolated incidents related to tensions in the family situation." Bernstein concluded that the children would benefit from "having a healthy relationship with both parents" and recommended "extensive involvement in individual and family therapy." Bernstein recommended a shared custody arrangement.
At the hearing on May 2, 2008, Judge Silveira personally recommended the appointment of Hunsaker to serve as a therapist to implement the parenting and therapy plan outlined in Bernstein's report. He stated that Hunsaker did not have any conflicts of interest and explained that the family court had a "professional working relationship" with Hunsaker.
In the summer of 2008, Hunsaker filed an initial report and recommendation. Mary Beth raised concerns about information missing from Hunsaker's report. Judge Silveira agreed the report needed to be augmented to set forth (1) details supporting Hunsaker's recommendations in her report, (2) whether Casey had followed the existing visitation plan, and (3) the extrajudicial communication between Hunsaker and Casey's father. Hunsaker was ordered to file a supplemental report. After Mary Beth's request that Hunsaker augment her report, Mary Beth perceived that Hunsaker exhibited hostility toward her.
In September 2008, Judge Silveira adopted Hunsaker's recommendation that child custody be shared equally and ordered Hunsaker to conduct coparenting counseling with Mary Beth and Casey. The order did not specify including the children in any counseling with Hunsaker.
Hunsaker began meeting with only the children and Casey, excluding Mary Beth from these meetings. Mary Beth raised concerns about this procedure with Hunsaker, who responded that she was conducting "reunification counseling" because Mary Beth had withheld the children from their father. No such finding ever had been made by Judge Silveira.
In November 2008, Mary Beth became aware of previously undisclosed connections between Hunsaker and the Tharp family. Hunsaker was acquainted with Casey's grandfather, Eugene Tharp; Hunsaker's husband, son, and brother-in-law had been regular customers of the corporation for many years.
On January 23, 2009, Judge Silveira summoned counsel to court. He presented a "confidential" report from Hunsaker in which Hunsaker accused Mary Beth of making accusations against her. Hunsaker expressed mixed feelings about continuing to work with the family. At the same time, Mary Beth filed a declaration disclosing the information she had received about Hunsaker's connections to the Tharp family and asked for a full disclosure of the background and contacts between Hunsaker, Hunsaker's family, the Tharps, and the Tharp family businesses.
Judge Silveira then denied Binder's request for an informal resolution of the potential conflict of interest issue and instead required the filing of a formal recusal motion within five days if Mary Beth had concerns about Hunsaker's appointment. A recusal motion was filed on January 30, 2009, with a hearing date of May 6, 2009. Hunsaker filed a subsequent report in order to provide clarification of any connections to the Tharp family and the Tharp family businesses; Mary Beth withdrew her recusal motion.
Despite the withdrawal of the motion to recuse Hunsaker, Judge Silveira kept the hearing date of May 6, 2009, on calendar and Hunsaker filed three reports. Judge Silveira directed that a report from the children's counsel, Daniel E. Bern, be submitted prior to that date. The report was to address whether the parties and their children should continue to engage in ongoing therapy and, if so, whether Hunsaker should remain as the therapist.
On April 7, 2009, Bern submitted a report to the family court recommending the termination of the counseling with Hunsaker. Bern, however, also noted that Mary Beth continued to make negative comments about Casey in front of the children. Bern suggested that the children's time with Casey should be increased, so as to lessen their exposure to negative comments by Mary Beth.
Bern's report included comments from Chelsea's psychologist, Jacqueline Harris-Groeber, stating Hunsaker should not be providing conjoint or coparenting counseling in the Tharp case. Mary Beth's individual therapist reported to Bern that any "therapeutic relationship between [Mary Beth] and Janet Hunsaker is `decimated.'"
Bruder filed a response to Bern's report and what he called "gratuitous filings" by Hunsaker. The response was filed because Judge Silveira refused to drop the recusal motion from calendar, even though it had been withdrawn by Mary Beth, and a May 6 hearing on the recusal motion still was pending.
Bern filed a motion to change the child custody arrangement, asking that Casey have legal and physical custody of the children, with Mary Beth to have limited visitation. Mary Beth responded to the change of custody request by acknowledging that she had "a problem with getting over what has happened," stating that she was in individual therapy to address those issues and pointing out that none of the children's therapists had suggested a drastic change of custody that allowed her only limited visitation.
Before the May 6 hearing to address Bern's report and prior to a hearing on the motion for a change of custody, attorney fees hearings were held. Mary Beth and Bruder apparently felt that Judge Silveira's demeanor and attitude toward Mary Beth changed dramatically after the January 23, 2009, hearing and the filing of the recusal motion, and the change in attitude affected the result on the fees hearings. Judge Silveira's response was to state in the April 13, 2009, order, which denied the third attorney fees motion: "Apparently having no insight into the previous findings and orders of this Court, counsel for [Mary Beth] attempts to conflate the Court's response to the issues raised in the report of Ms. Hunsaker with his motions for attorney's fees and sanctions. `After this, therefore because of this' (Post hoc ergo propter hoc) is an error of logic to be avoided."
On April 21, 2009, Judge Silveira issued an ex parte order on child custody, after receipt of Bern's report. He found Mary Beth's behavior to be "histrionic, explosive and inappropriate" and "extremely detrimental to the minor children." He terminated the shared custody arrangement, ordered that Casey have full custody of the three children, and specified that Mary Beth could have supervised visitation of no more than two hours per week. Mary Beth was permitted to call the children once each day between 7:00 p.m. and 8:00 p.m., the children could refuse to talk to her, and Casey was allowed to record the conversations.
On April 22, 2009, Judge Silveira signed an order prepared by Harbottle that granted Mary Beth's request to withdraw the recusal motion, granted Casey's request for a bifurcated trial on issues regarding characterization of assets, and set a hearing date of April 24, 2009, on Casey's request to require Mary Beth to move from the family home and for modification of spousal and child support.
On May 5, in preparation for a May 6 hearing on custody and visitation issues, Bruder submitted a declaration stating that he had been advancing fees and costs in the case for 13 months and could no longer afford to do so, and Mary Beth did not have funds available to pay expert witness fees to subpoena witnesses for the hearing. Bruder requested that a stay of all proceedings be put in place, pending a determination of Mary Beth's appeal of the attorney fees orders.
On May 11, 2009, Judge Silveira stated that because Casey's motion to modify support had been pending since February 2009, if a stay were issued by this court, then he was ordering "effective the date the stay is issued, family support is reduced from $5,000.00 a month to $2,500.00" per month. This order was made shortly after Judge Silveira acknowledged that he still needed additional financial data from Casey before making a determination on his request to modify support.
Also on May 11, Judge Silveira issued a 14-page written order directed against Mary Beth. He found that Mary Beth "undermined the previous shared custody arrangement," "perceive[d] herself to be the aggrieved party in these divorce proceedings," and "sabotaged the co-parenting therapy that Janet Hunsaker attempted to provide . . . by conjuring up conflicts of interest everywhere and making unfounded accusations against Ms. Hunsaker." He concluded there was a "substantial change of circumstance to change custody." This order provided that Casey was to have legal and physical custody of the children, with Mary Beth to have visitation on three weekends each month. The order further provided that the children were not to be left with Mary Beth's parents "for any reason." The order also stated Mary Beth's visitation would be restricted to supervised visitation if any report from Hunsaker was received indicating that Mary Beth continued to engage in unspecified "behaviors" considered unacceptable by him.
On May 21, 2009, Judge Silveira held a hearing on Mary Beth's request for a stay of proceedings in that court pending resolution of her appeal. At that time, Judge Silveira acknowledged his order of May 11 "might" be viewed as punitive by this court, but went on to assert the order was not punitive and opined that the change in support was "something that equity and the law require."
During the hearing on May 21, Judge Silveira also stated that Mary Beth "blames the Court for not establishing a budget allocating attorney's fees, Court costs, expert fees equitably between the parties." He stated additionally that the "Court is attacked" for not analyzing Binder's bills. "The Court saw reams of bills. To undertake an analysis of those bills would require extensive time and hearing." He further stated that the bills were "so excessive as to not merit that kind of hearing."
Judge Silveira had more comments to make at the May 21 hearing. He quoted Mary Beth's assertion that Casey had a "history of using dilatory tactics as an adversarial tool" and then went on to state: "This Court has been presented no evidence nor was it asked to take judicial notice of any file in this court in which [Casey] did any such thing. That was argument of counsel . . . without any proof in the Court's opinion." Judge Silveira concluded with the comment, "There's no indication Casey Tharp has engaged in these types of activities."
In June the family court's forensic accountant reported that Casey received a salary of $126,500 and additional perquisite income from 2004 through 2008 from the corporation in the amount of $155,500 per year, some of which had been paid for Mary Beth's benefit after separation. During this time, the corporation had classified the perquisites as expenses of the company. Starting in 2009, the corporation was reclassifying the perquisite payments made on Casey's behalf as "shareholder loan[s]." As of June 2009, Casey still had not provided the forensic accountant with all of his financial data in order that an accurate calculation of income could be made. The accountant opined that income projections for Casey could be short by $100,000 or more.
Analysis
We are painfully aware that litigants and attorneys sometimes manifest their emotional pique at a decision by blaming the judge for being biased. This type of accusation appears more frequently in the family law arena than any other area of law. The accuser's description of the questioned decision is at best incomplete and at worst self-servingly inaccurate. We also are aware that the actions of a judge must not only be impartial, but they must be seen as impartial by a reasonable person.
Judge Silveira heard many motions, scheduled management conferences, and made many orders. But, that is not enough.
(8) Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) provides that a judge is disqualified if "A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." We conclude that the words and conduct of Judge Silveira create a doubt that he would be able to be impartial on remand.
Examples of words and conduct by Judge Silveira that create such a doubt are:
(1) His refusal on three occasions to review timesheets and allot the necessary time for a proper hearing on Mary Beth's request for attorney fees;
(2) His claim that he was being "attacked" by Mary Beth for failure to review and analyze the attorney fee requests;
(3) His finding that there was "no evidence" that Casey employed dilatory tactics in the case, despite the numerous findings of failing to comply with discovery requests, and the delay caused by the unsubstantiated claim of a premarital agreement;
(4) His personal involvement in the claim by Mary Beth of a conflict with the counselor recommended by him, including the summoning of counsel when the allegations were first considered, the requirement of a noticed motion to consider the claim, and the refusal to allow the motion to be dropped after the claim was withdrawn by Mary Beth;
(5) His making of an order changing custody and visitation upon receiving a report he requested concerning the claim of a conflict with the counselor, but before a scheduled hearing was held;
(6) His continuing the questioned counselor as the therapist for child custody and visitation issues after all mental health professionals who reviewed the matter recommended against it, and giving the counselor virtual control over Mary Beth's contact with the children;
(7) His threat to reduce Mary Beth's spousal support by 50 percent if she pursued an appeal of his rulings on attorney fees, when he had acknowledged that he did not have all the financial information needed to determine Casey's income; and
(8) His tone and remarks when addressing the claims of Mary Beth and her counsel that began when she raised concerns about the counselor and became worse thereafter.
The list above is not exhaustive but it clearly reflects the "appearance of bias" that must be avoided.
Conclusion
We agree that the mere fact a judicial officer rules against a party does not show bias. (See, e.g. People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562-1563 [ 258 Cal.Rptr. 75].) It is a well-settled truism, however, that the "`"trial of a case should not only be fair in fact, but it should also appear to be fair."' [Citation.]" ( In re Marriage of Iverson (1992) 11 Cal.App.4th 1495, 1500 [ 15 Cal.Rptr.2d 70].) In the Tharp case, fairness and the appearance of fairness will be achieved only if the entire case is reassigned to another judicial officer.
CONCLUSION
As can be seen from the summary above, this litigation is out of control. It is apparent that the litigants and the attorneys cannot control it. The attempts by the family court to control it have failed. The emotions of the parties and their attorneys are heightened to the point where the welfare of the children is at risk. Casey is being rewarded for his failure to follow court orders by causing Mary Beth to feel helpless and suspicious. She did not have the financial ability to fight Casey, she was losing custody of her children because of her emotional state, and it appeared to her the family court had turned against her.
We hope the next judge who is assigned this matter will use the tools available in the rules and the Family Code to bring this case under control and to move this case to completion.
DISPOSITION
The March 11, April 13, and April 22, 2009, orders denying an award of attorney fees and costs to Mary Beth are reversed. This case is remanded to the family court for further proceedings. On remand, this case shall be assigned to a different judicial officer. The new judicial officer shall analyze the attorney fees requests and award Mary Beth attorney fees and costs pursuant to sections 271, 2107, 2030, and 2032 in an amount commensurate with the complexities of the case.
The "Motion to Strike Documents from Respondent's Appendix" filed June 2, 2010, is denied.
Costs on appeal, to include attorney fees incurred in seeking a writ of supersedeas and pursuing this appeal, are awarded to Mary Beth.
Gomes, J., and Kane, J., concurred.
A petition for a rehearing was denied October 22, 2010, and respondent's petition for review by the Supreme Court was denied January 12, 2011, S188112.
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