Opinion
B322644
01-17-2023
In re the Marriage of LUCIANA M. MUELLER and GINTAUTAS BUZORIUS. v. GINTAUTAS BUZORIUS, Appellant. LUCIANA M. MUELLER, Respondent,
Gintautas Buzorius, in pro. per., for Appellant. Cavassa O'Connell and Sarah A. Cavassa; Law Offices of Joel Franklin and Joel Franklin, for Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Monterey County, No. 18FL000180 Katherine E. Stoner, Commissioner. Affirmed.
Gintautas Buzorius, in pro. per., for Appellant.
Cavassa O'Connell and Sarah A. Cavassa; Law Offices of Joel Franklin and Joel Franklin, for Respondent.
EDMON, P. J.
This appeal arises from two sanctions orders in a family law case involving appellant Gintautas Buzorius and respondent Luciana Mueller.
In the first order, the court required Buzorius to pay Mueller $7,500 in attorney fees for failing to adequately respond to Mueller's discovery requests. In the second order, the court required Buzorius to pay Mueller $20,000 in attorney fees for his ongoing uncooperative conduct in the litigation. Mueller sought the sanctions in part pursuant to Family Code section 271, which authorizes "[a]n award of attorney's fees and costs . . . in the nature of a sanction" against a party who engages in uncooperative conduct that frustrates settlement and increases litigation costs. (§ 271, subd. (a).)
All further undesignated statutory references are to the Family Code unless noted otherwise.
Buzorius, representing himself, raises three issues in his appeal. First, he claims the trial court erred by sanctioning him $20,000 because the evidence demonstrated he was unable to afford that amount. Second, he claims the trial court erred in concluding that he failed to adequately respond to Mueller's discovery requests. Last, he argues that Mueller understated her finances, and that her purported dishonesty should have barred her recovery of attorney fees.
Because Buzorius has failed to show that the trial court abused its discretion or that its findings were not supported by substantial evidence, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
While we are mindful Buzorius is representing himself on appeal, his opening brief provides the court with little description of the factual background of this matter, provides few citations to the lengthy record, and cites practically no legal authorities to support his arguments. Instead, he left it to Mueller to describe the many filings, disputes, and hearings that led to the instant appeal.
Even though Buzorius is representing himself, he "is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys." (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) Mueller contends Buzorius's failure to adequately cite to the record or support his contentions with pertinent legal authority (see Cal. Rules of Court, rule 8.204(a)) should result in a waiver of his arguments on appeal. We reach the merits of Buzorius's appeal in the interest of justice.
Complicating matters further, it appears the clerk's transcript includes not only records from the court department that issued the orders subject to this appeal, but also records from a different court department overseeing a related child support case against Buzorius filed by the Monterey County Department of Child Support Services (DCSS). Moreover, it appears that the clerk's transcript inadvertently omitted two declarations filed by Buzorius in the family court matter, which Mueller now seeks to include. Once again, Buzorius failed to clarify this muddle and instead left it to Mueller to guide our review of this record.
Nevertheless, largely with the aid of Mueller's brief, we do our best to untangle these proceedings.
I. The child support stipulation and discovery request
Buzorius and Mueller were involved in litigation related to custody, visitation, and child support concerning their children, B. and E. The proceedings relevant to this appeal start with the parties' June 27, 2019 stipulation, which required Buzorius to pay Mueller $1,500 in monthly child support.
According to their stipulation, that amount "was agreed to . . . in light of the variable factors and unascertained details of each party's income, and the attorneys' fees and costs that would be incurred in seeking court findings on each party's income available for support." Their stipulation further provided they would each bear their own attorney fees and costs incurred through June 27, 2019, and that "[a]ll discovery outstanding" as of that date "is terminated, as the pending financial issues between the parties are resolved."
Unfortunately, the parties' child-support agreement was short-lived, as was their attempt to minimize their attorney fees and costs. On January 24, 2020, Buzorius filed an income and expense declaration and request for order to reduce his child support obligation based on his recent loss of employment with PayPal. Six days later, on January 30, 2020, Mueller served Buzorius with requests for production of documents related to his request. She sought Buzorius's 2019 paystubs, 2019 W-2 forms, 2019 1099 forms, documents related to his separation from PayPal, recent bank and credit card statements, documents related to recent rental income and rental property expenses, and recent loan applications.
II. Buzorius's April 10, 2020 declarations
On March 10, 2020, Mueller filed a request for order to compel responses to her requests for production, contending Buzorius had "failed to respond or produce any documents" in response to her discovery requests.
On April 10, 2020, Buzorius served two declarations. One responded to Mueller's motion to compel. The other responded to an earlier request for order by Mueller to have the court appoint a parenting coordinator and require Buzorius to pay the parenting coordinator's fees.
On February 8, 2022, Mueller filed a motion to augment the clerk's transcript to include these two declarations, which appear to have been inadvertently omitted. As described in that motion, Buzorius's Amended Notice Designating Record on Appeal listed his declarations dated April 10, 2020. However, the clerk's transcript did not include the two declarations, and instead included one filed on April 10, 2020, by DCSS in the related case bearing the same case number as the family law case. Buzorius, who failed to bring this issue to the court's attention in his opening brief, did not oppose Mueller's motion. On March 10, 2022, the Court of Appeal, Sixth Appellate District, from which this case was transferred, denied Mueller's motion to augment the record without prejudice "to a further foundational showing regarding the attached exhibits, including facts or stipulation from appellant indicating appellant confirms the accuracy of the documents." Buzorius's reply brief, filed on June 2, 2022, does not appear to dispute the accuracy of the declarations. We conclude augmentation of the clerk's transcript to include the two April 10, 2020 declarations is warranted. (See Cal. Rules of Court, rule 8.155(a).)
This request for order does not appear to be included in the record on appeal. However, according to a declaration filed by Mueller, the parties entered into an agreement to appoint a parenting coordinator on January 16, 2020, but Buzorius later refused to sign the stipulation appointing the parenting coordinator. Mueller then had to seek a court order to appoint the parenting coordinator and force Buzorius to pay his share of related fees.
In his declaration addressing Mueller's motion to compel, Buzorius stated that he was never served with Mueller's discovery requests and only became aware of them on March 27, 2020, when his counsel received an email from Mueller's counsel advising him about the date for the hearing on the motion to compel. In that same declaration, Buzorius stated that he "fully intend[ed] to comply with [his] discovery obligations" and was "diligently working" to obtain and produce responsive documents.
In his declaration regarding the parenting coordinator, Buzorius asked the court either to vacate its earlier order regarding the parenting coordinator or require Mueller to pay the costs associated with the parenting coordinator. Buzorius claimed his request was justified by his "loss of employment and lack of income from which [he] could pay the Parenting Coordinator." Buzorius stated that he had been terminated from his job with PayPal, that his "last day of work was March 2, 2020," and that he had not received "any severance package from PayPal."
Mueller filed a responsive declaration on April 16, 2020, disputing Buzorius's claim that he did not receive severance from PayPal. According to Mueller, in response to a subpoena to PayPal she discovered that Buzorius was terminated on March 16, not March 2, and that he was eligible to receive $43,846.15 in severance pay.
III. April 23, 2020 hearing
On April 23, 2020, the court held a hearing on Mueller's motions.
In support of her motion pertaining to the parenting coordinator, Mueller's counsel described Buzorius's refusal to sign a stipulation to appoint the parenting coordinator and reiterated Mueller's claim that Buzorius was dishonest in his April 10, 2020 declaration regarding the date of his termination and severance payment from PayPal.
In response, Buzorius's counsel stated that due to Buzorius's recent loss of employment, Buzorius had "no wage income, as we speak," and that modification of the parenting coordinator order was warranted by that changed circumstance.
Buzorius's counsel also responded to the alleged inaccuracies in Buzorius's April 10, 2020 declaration. He clarified that although Buzorius ceased working at PayPal on March 2, there was a two-week period during which he remained employed (i.e., until March 16) and could seek a transfer to a different position. He further explained that when Buzorius submitted his April 10 declaration, Buzorius believed he was ineligible for severance. According to his counsel, Buzorius did not learn about his severance payment from PayPal until April 13, 2020, when he received the severance payment in the mail. While acknowledging the declaration was inaccurate, Buzorius's counsel contended it "was certainly accurate at the time it was filed."
Regarding the motion to compel, Mueller's counsel noted that although Buzorius had provided discovery responses the afternoon before the hearing, the responses were "drastically inadequate." She cited Buzorius's alleged failure to produce "even a single paystub or W-2 or 1099" in response to the requests.
Buzorius's counsel responded that Buzorius had not been served with Mueller's discovery requests, but that once he received the requests he worked "in good faith to make sure that all documents he ha[d] access to" were provided. According to his counsel, although Buzorius had not produced "every single thing that [Mueller] asked for," he was "trying to supplement his responses."
At the conclusion of the hearing, the court ordered Buzorius to pay the parenting coordinator's fee of $3,500 no later than June 7, 2020, and sanctioned him $750, which was stayed subject to him paying the fee within 45 days. Regarding Mueller's motion to compel, the court ruled the motion was moot and declined to order sanctions. It further instructed the parties to meet and confer prior to a motion to compel further responses.
IV. Mueller's June 5, 2020 motion to compel
Mueller filed a request for order on June 5, 2020, seeking to compel responses to her January 30, 2020 discovery requests, and for sanctions pursuant to section 271.
Mueller also cited Code of Civil Procedure section 2031.300, subdivision (c).
In support of her motion to compel, Mueller described Buzorius's initial responses to her discovery requests. Mueller stated that Buzorius claimed to be unable to obtain his 2019 paystubs, 2019 W-2 forms, or 2019 1099 forms, and instead referred Mueller to PayPal; agreed to produce some bank account and credit card statements, but referred Mueller to the address of various other financial institutions and credit card companies to obtain additional responsive documents; referred Mueller to various bank account and credit card statements to determine his rental income and property expenses, and also referred her to other financial institutions and credit card companies to obtain additional responsive documents; and, last, referred Mueller to a mortgage company to obtain documents responsive to her request for loan statements.
Mueller also included evidence that her counsel sent a letter on May 5, 2020, and an email on June 1, 2020, to Buzorius's counsel describing the inadequate responses. The May 5 letter from Mueller's counsel emphasized that it was Buzorius's duty to provide Mueller with responsive documents, not Mueller's duty to subpoena responsive documents from third parties, especially where such documents were in Buzorius's control. She asked Buzorius's counsel to meet and confer with her to avoid the need to issue third-party subpoenas and to minimize costs. According to Mueller's evidence, Buzorius's counsel did not respond to either correspondence.
On July 16, 2020, Mueller filed an updated declaration in support of her request for order compelling discovery. Mueller stated that Buzorius still had not complied with the outstanding discovery requests. She further explained that Buzorius had not been forthright with the court.
Based on information received from third-party subpoenas and provided to the court with her declaration, Mueller explained that Buzorius had signed an employment contract with Freedom Financial on March 17, 2020, setting an annual salary of $205,000 and a start date of April 13, 2020, and that Buzorius had received earnings from Freedom Financial for the period ending April 19, 2020. This, even though Buzorius's counsel represented at the April 23, 2020 hearing that Buzorius needed to modify the parenting coordinator order because he had "no wage income, as we speak." Moreover, Buzorius's April 10, 2020 declaration-apparently signed weeks after he signed his employment contract with Freedom Financial-stated that his "loss of employment" with PayPal and "lack of income" was a change in circumstances justifying his request to not pay the parenting coordinator, and that he was "diligently attempting to obtain employment." That declaration says nothing about his employment with Freedom Financial. Mueller also again noted that contrary to Buzorius's April 10, 2020 declaration denying receipt of a severance payment from PayPal, her subpoena to PayPal established that he signed a severance agreement with PayPal nearly a month earlier, on March 14, 2020.
In addition, his employment contract entitled him to a signing bonus of $30,000, and an additional annual performance bonus.
Mueller did not accuse Buzorius's counsel of lying; rather, she noted that shortly after the April 23, 2020 hearing, his attorney filed a notice that his limited-scope representation of Buzorius had ended. Mueller presumed Buzorius had lied to his counsel.
V. July 23, 2020 hearing
The court held a hearing on Mueller's motion to compel on July 23, 2020. At the hearing, the parties advised the court of their stipulation: Buzorius agreed to "make a full and complete production of all items requested" in Mueller's discovery request by August 22, 2020, and "shall pay $2,000 towards [Mueller's] attorney fees" incurred in connection with the pending motion to compel. The court set a hearing for August 27, 2020, to assess compliance with the stipulation.
The parties further advised the court of their stipulation that Buzorius would contact the parenting coordinator by July 30, 2020, to set up his first intake meeting.
VI. August 5, 2020 motion for attorney fees
On August 5, 2020, Mueller filed a request for order seeking attorney fees from Buzorius, with a hearing set for September 24, 2020.
In her supporting declaration, Mueller stated that she had incurred over $73,000 in attorney fees and costs, and that the excessive amount of fees was caused in part by Buzorius's "false declarations, failure to timely provide accurate information, failure to cooperate, and failure to follow court orders." She asked for an order requiring Buzorius to contribute $50,000 toward her attorney fees pursuant to sections 7605 and/or 271.
Mueller's declaration summarized misleading and uncooperative conduct by Buzorius, including that he had misled the court in his April 10, 2020 declaration about not receiving a severance payment from PayPal and failing to disclose his anticipated employment with Freedom Financial; had again misled the court at the April 23, 2020 hearing when his counsel stated that Buzorius "has no wage income, as we speak," even though he had already signed his employment contract with Freedom Financial more than a month earlier; had failed to timely pay child support or share expenses for their children's dental and eyecare; had delayed paying his share of fees for a therapist who was appointed to prevent deterioration of the relationship between Buzorius and one of their children; had failed to provide timely and complete discovery responses, forcing Mueller to seek court orders compelling adequate responses; and had refused to sign a stipulation appointing a parenting coordinator, forcing Mueller to seek an order from the court to obtain his compliance.
Mueller also stated that her annual income was approximately $35,280, that she was not currently working because of various shelter-in-place orders, and that she had to deplete her savings and borrow money from family members to pay her attorney fees.
Mueller also filed an income and expense declaration on August 10, 2020 (which included her 2019 tax returns), estimating $2,940 in monthly income based on her 2019 earnings, but noting that she had "not worked since the shelter in place orders were issued except during the few weeks estheticians were permitted to return to work." Buzorius then filed his income and expense declaration on August 24, 2020. Mueller filed a responsive declaration on September 17, 2020, disputing various aspects of Buzorius's August 24 declaration. For example, Buzorius's August 24 declaration listed his monthly income as $15,769. According to Mueller, based on Freedom Financial paystubs received pursuant to her subpoena and included with her August 5, 2020 request for order, Buzorius's monthly income was $22,975, not $15,769. Mueller also disputed Buzorius's claim that his rental properties operated at a monthly loss of $4,722; according to her estimates, his monthly rental income after mortgage payments, taxes, and insurance, was $3,500.
Last, Mueller provided the declaration of her counsel. Mueller's counsel described her rates and the fees incurred by Mueller ("slightly over $73,000"), and estimated that "at least half of Ms. Mueller's fees have been incurred because of [Buzorius's] bad faith actions ...."
VII. August 27, 2020 hearing
The court held a hearing on August 27, 2020, to determine Buzorius's compliance with Mueller's outstanding discovery requests.
At the hearing, Mueller's counsel stated that while Buzorius had produced some documents the Sunday before the hearing, the responses remained incomplete. The court thus granted Mueller a continuance to review the documents and file a further declaration describing any deficiencies. The court also warned Buzorius, who was representing himself, that if he did not fully comply with the discovery requests "there may be sanctions that will be issued against" him. The court set the continued hearing date for October 22, 2020.
VIII. Buzorius's responsive declaration
On September 17, 2020, Buzorius requested to reschedule the September 24, 2020 hearing on Mueller's motion for attorney fees, claiming he needed more time to prepare. Then, on September 21, 2020, just days later, he filed a lengthy declaration totaling 77 pages with attachments opposing the claims in Mueller's attorney fees request.
The declaration is too long to summarize in full. Among other things, Buzorius explained that although he ultimately received a severance payment from PayPal, his entitlement to severance pay was still uncertain as of April 10, 2020, when he filed a declaration claiming not to have received "any severance package from PayPal;" that even though his new job with Freedom Financial was supposed to begin April 13, 2020, he failed to disclose that in his April 10, 2020 declaration because that start date was uncertain due to the shelter-in-place orders and he was "still unemployed" as of April 10; that his attorney failed to disclose his employment with Freedom Financial at the April 23, 2020 hearing because his attorney was focused on the change in circumstances warranted by Buzorius's prior loss of employment with PayPal in March 2020; that he had not failed to timely pay child support or his share of the children's dental or eyecare, as Mueller had claimed; that although there may have been "delays in providing answers" to some of Mueller's discovery requests, by April 2020, he had provided Mueller with "all the documents she requested and were available" at that time, and that by August 21, 2020, he had provided Mueller with all outstanding discovery; that he had not misstated any of his employment or rental income in his prior filings, as Mueller had claimed; and that his failure to timely pay for the therapist and parenting coordinator was justified by his lack of financial resources.
Additionally, Buzorius accused Mueller of bad faith in responding to his discovery responses; disputed various aspects of Mueller's claimed income and expenses; and requested sanctions of $20,000 against Mueller's attorney for her "attempt to prolong this case indefinitely ...."
Mueller quickly filed a responsive declaration on the afternoon of September 21, 2020. In addition to objecting to Buzorius's late-filed declaration (filed three days before the hearing), she disputed various aspects of Buzorius's September 21 declaration. For example, contrary to the implication that Buzorius was "broke," Mueller emphasized that in addition to his "substantial income" Buzorius owned at least two valuable rental properties worth over $1 million, had recently purchased a home worth $770,000, and owned a sailboat worth $25,000. She further emphasized that Buzorius had retained "five different attorneys, one of them on two separate occasions, and has been self-represented in between each of these attorneys," causing delays in proceedings and increasing her own attorney fees.
According to Mueller, Buzorius also owned a third rental property in Lithuania earning monthly rental income of 1,500 euros.
The court continued the hearing on Mueller's attorney fees request to October 22, 2020.
IX. Further discovery-related declarations
Mueller filed a declaration on September 24, 2020, describing Buzorius's discovery responses to date. She stated that Buzorius had failed to produce a single paystub; had produced some, but not all, responsive bank statements; had produced some, but not all, responsive credit card statements; had not produced any invoices, bills, or other documents related to claimed rental property expenses; and had produced no loan applications despite having obtained financing for a home purchase in August 2019. Due to Buzorius's inadequate discovery responses, Mueller requested that the court impute income to Buzorius based on her estimates.
Buzorius filed a responsive declaration on October 13, 2020. He attempted a point-by-point response to Mueller's September 24, 2020 declaration describing his discovery deficiencies. Buzorius's declaration also addressed several additional points. He disputed Mueller's calculation of his employment and rental income; provided "an overview" of his monthly budget, claiming his income and expenses left him unable to afford an attorney; explained his need for two residences (i.e., one close to his job and another close to the children); and concluded by contending that Mueller's request for attorney fees would impose an unreasonable financial burden on him.
He also filed a declaration on September 25, 2020, describing his concerns with making child support payments.
Two more declarations followed. Mueller filed one on October 14, 2020. She acknowledged that Buzorius had produced some additional bank and credit card statements on October 12, 2020, but that he still had not produced various outstanding items.
Among other things, Mueller stated that Buzorius had not produced any PayPal paystubs; any bank statements reflecting paycheck deposits from Freedom Financial; any bank deposits showing deposit of his severance from PayPal; any bank statements showing the source of his down-payment for his home purchase in August 2019; or any bank statements showing where he deposited his rental income.
Then Buzorius filed a declaration on October 19, 2020. He accused Mueller of misstating her finances, barraging him with a "never end[ing]" stream of accusations regarding his treatment of their children, and failing to provide him with accurate or complete financial discovery. Finally, regarding Mueller's discovery requests, Buzorius largely reiterated his earlier responses, including referring Mueller to his employer and mortgage company to obtain relevant responsive documents.
X. Report of family therapist
On October 20, 2020, Mueller lodged with the court a report from Dr. Regina Marshall, Ph.D., dated October 19, 2020. Although not entirely clear from the record, it appears Dr. Marshall was retained to provide family counseling and related services following an order of the court in January 2020.
According to Dr. Marshall's report, following a pandemic-related delay of her services through summer 2020, Buzorius had delayed her services twice since August 2020, and she had "not heard from" Buzorius since then. Furthermore, while Mueller had "consistently remained in contact" to know when Dr. Marshall's family therapy and coparenting services would begin, "no progress has been made due to [Buzorius's] lack of participation" in arranging those services.
According to Mueller's August 5, 2020 declaration in support of her attorney fees request, Buzorius delayed paying Dr. Marshall's retainer fee for five months.
XI. Orders granting motion to compel and sanctions
At the October 22, 2020 hearing, the court partially granted Mueller's motion to compel and request for sanctions.
The court acknowledged that it "read all of the pleadings" and had "reviewed everything" related to Mueller's pending motions, including Buzorius's late-filed declarations, and invited argument from the parties.
Mueller's counsel emphasized that the discovery requests were narrowly tailored to Buzorius's request to modify child support, that Buzorius had failed "to timely and completely produce his responses, even after stipulating in July that he would produce a full and complete response and production by August of 2020," that Buzorius's conduct was part of a pattern to "delay, confuse, and not cooperate" in the case which had "dramatically increased [Mueller's] fees," and that the recently lodged report from Dr. Marshall was further evidence of Buzorius's lack of cooperation.
In response, Buzorius, representing himself, contended that it was "very easy" for Mueller to determine his financial situation by subpoenaing records from his employer, that her discovery requests were overly broad, and that Mueller had produced "basically nothing" in response to his earlier discovery requests. When prompted by the court to focus on his own discovery responses, Buzorius stated that he produced "all the information [that he] was requested to produce."
Regarding Mueller's attorney fees request, Buzorius emphasized that he could not afford his own attorney and that he was "not able to do anything here. I can't afford it. My total liquid assets are about the same as [Mueller's], about $20,000." He further explained that he lived "paycheck to paycheck" and that he owed his former attorneys "about $15,000."
At the conclusion of the hearing, the court ruled that Buzorius had failed to adequately respond to Mueller's discovery requests and ordered sanctions in the amount of $7,500, payable in 30 days. The court denied Mueller's request to impose issue sanctions related to Buzorius's income.
Specifically, the court concluded that Buzorius had failed to produce all responsive paystubs, bank statements, credit card statements, loan applications, and documents related to claimed rental property expenses.
The court further ruled that Mueller was entitled to attorney fees in "the matter of custody and visitation issues." Although the court stated that it was not "clear . . . how much of the attorney's fees that were quoted relate to custody and visitation," based on its "review of the file and the extensive litigation that was required," it ordered Buzorius to pay $20,000 in attorney fees, payable in 60 days.
The court's orders were filed on November 24, 2020. Buzorius timely appealed on December 17, 2020.
DISCUSSION
I. Legal principles and standard of review
Section 271 "authorizes an award of attorney fees and costs as a sanction for uncooperative conduct that frustrates settlement and increases litigation costs." (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 290.) "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." (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1317; see also In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1524 [section 271 "imposes a 'minimum level of professionalism and cooperation,' to effect the policy favoring settlement of family law litigation-and a reduction of the attendant costs."])
Although the trial court's orders do not cite section 271, Mueller cited section 271 in support of both her June 5, 2020 motion to compel and August 5, 2020 request for order for attorney fees and costs. Because the trial court's orders may be sustained under section 271, we presume its orders rest on that basis. (See Hirshfield v. Schwarz (2001) 91 Cal.App.4th 749, 765-766 [describing "fundamental rule of appellate review" that "a judgment is presumed correct, all intendments and presumptions are indulged in its favor, and ambiguities are resolved in favor of affirmance"].)
Section 271, subdivision (a), states that a court may impose an award of attorney fees and costs based on the extent to which 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).) An award under section 271 "is in the nature of a sanction," and a court imposing such a sanction "shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities." (Ibid.) Additionally, a court may not impose a sanction pursuant to section 271 that "imposes an unreasonable financial burden on the party against whom the sanction is imposed." (Ibid.)
"Imposing sanctions under section 271 is within the discretion of the trial court." (Menezes v. McDaniel (2019) 44 Cal.App.5th 340, 347.) Thus, we may reverse the trial court's imposition of sanctions pursuant to section 271 only upon abuse of that discretion, "that is 'only if, considering all of the evidence viewed more favorably in its support, and indulging all reasonable inferences in its favor, no judge could reasonably make the order.' [Citations]." (In re Marriage of Davenport, supra, 194 Cal.App.4th at p. 1524.)
"We review findings of fact forming the basis of a sanctions award for substantial evidence." (Menezes v. McDaniel, supra, 44 Cal.App.5th at p. 347.) That means "we accept all evidence supporting the trial court's order," "we completely disregard contrary evidence," "we draw all inferences to affirm the trial court," and "we do not reweigh the evidence." (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 581.)
II. Ability to pay
As noted, "[a] court awarding attorney fees and costs as a sanction under section 271 must consider 'all evidence concerning the parties' incomes, assets, and liabilities' and must not impose an unreasonable financial burden on the sanctioned party. [Citation]." (In re Marriage of Fong, supra, 193 Cal.App.4th at p. 291.)
Buzorius argues that the trial court erred in finding that he could pay the $20,000 sanction. He contends the trial court "should have looked into [his] actual financial obligations" but that it "neglected to do so." He points us to his August 24, 2020 income and expense declaration, which he contends "convincingly demonstrates" he was unable to afford even his own attorney, let alone an award of attorney fees to Mueller. He also refers us to his October 13, 2020 declaration, which according to Buzorius describes his "hefty child support obligations, [and] need to maintain two homes ...."
We agree with Mueller that Buzorius's opening brief does not challenge either the trial court's determination that the $20,000 sanction award was justified by his conduct, or the amount of the award. To the extent Buzorius attempts to raise these issues in his reply brief, we decline to consider them. (Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894-895, fn. 10 [arguments raised by appellant for the first time in reply brief generally not considered, absent good reason for failing to present them earlier]; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [issue raised for first time in reply brief generally not considered" 'because such consideration would deprive the respondent of an opportunity to counter the argument' "].)
We reject Buzorius's argument. There is no basis in the record to conclude the trial court failed to consider evidence of his financial condition. In fact, the court explicitly stated at the October 22, 2020 hearing that it had reviewed everything submitted by the parties, including Buzorius's late-filed declarations. And even if the court had not stated on the record that it had considered all the evidence submitted by the parties, we would presume it. (In re Marriage of Falcone &Fyke (2012) 203 Cal.App.4th 964, 977 ["[N]othing in the record shows that the trial court was unfamiliar with and refused to consider the declarations. We therefore presume that the trial court considered these papers."]; In re Marriage of Fong, supra, 193 Cal.App.4th at pp. 291-292 [rejecting argument that trial court failed to consider party's ability to pay sanctions under section 271 where party "argue[d] in a conclusory manner and without citing the record that the court failed to consider his ability to pay"].)
Furthermore, even if we construe Buzorius's argument as a challenge to the trial court's implicit finding that the sanction award did not impose an unreasonable financial burden on him, we reject that contention too. In reviewing the trial court's factual findings, we do not reweigh the evidence. (See Schmidt, supra, 44 Cal.App.5th at p. 581 [trial court applying substantial evidence review "do[es] not reweigh the evidence"].) Thus, it is not sufficient for Buzorius simply to point us to his declarations attesting to his financial condition and urge us to give them greater weight than the trial court did. It is not this court's province to reevaluate that evidence. Rather, we determine only if there was substantial evidence to support the trial court's implicit finding that the sanction did not impose an unreasonable burden on Buzorius. Such substantial evidence exists in the record.
Indeed, Mueller filed a declaration on September 17, 2020, disputing various aspects of Buzorius's August 24, 2020 income and expense declaration-the one he claims "convincingly demonstrates" his inability to pay the sanction-contending Buzorius had understated his monthly income by more than $7,000, and that contrary to his claimed monthly rental losses of more than $4,000, Buzorius was actually earning monthly rental income of approximately $3,500 (in addition to monthly employment income of $22,975). Additionally, according to Mueller the combined value of two of Buzorius's rental properties (excluding the one in Lithuania) and his sailboat exceeded $1 million, plainly more than enough to cover the cost of the sanction. (See In re Marriage of Falcone &Fyke (2008) 164 Cal.App.4th 814, 828 [rejecting argument that record showed section 271 sanction award imposed unreasonable burden where sale of party's property could satisfy award].)
We also note that the day after Buzorius filed his October 13, 2020 declaration-the other declaration he cites in support of his claimed inability to pay the sanction-Mueller filed a responsive declaration stating that Buzorius was continuing to "hide[] facts that are adverse to him" and that he had still not produced various financial information, including certain paystubs, bank account and credit card statements, and a 2019 loan application. Last, we take note of the evidence that Buzorius did not disclose either his severance payment from PayPal or his employment with Freedom Financial in his April 10, 2020 declarations, and failed to disclose his employment with Freedom Financial during the April 23, 2020 hearing. In other words, there was sufficient evidence before the trial court to determine that Mueller's testimony was more credible than Buzorius's regarding his claimed financial status. (See In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531 [rejecting argument that trial court erred by finding husband's testimony more credible than wife's because appellate court does not" 'reassess the credibility of witnesses' "].)
Finally, Buzorius argues that the sanctions award was contrary to sections 7605, subdivision (a), and 2030, subdivision (a), because Mueller was represented by counsel but he allegedly could not afford counsel (at least not when the trial court sanctioned him). We are not convinced. Those sections authorize a court to "order the payment of fees and costs as between the parties, based on their 'relative circumstances' (i.e., respective incomes and needs and abilities to pay) in order to ensure a parity of legal representation in the action." (Hogoboom &King, Cal. Practice Guide: Family Law (The Rutter Group 2022) ¶ 14:3, p. 14-2 [discussing section 2030]; § 7605, subd. (a) [providing that "court shall ensure that each party has access to legal representation" and authorizing court to order payment of attorney fees "if necessary based on the income and needs assessments"].) An attorney fee award pursuant to section 271, by contrast, "is in the nature of a sanction" that serves a distinct purpose-deterring uncooperative conduct that frustrates settlement and increases litigation costs. (§ 271, subd. (a); In re Marriage of Fong, supra, 193 Cal.App.4th at p. 290.) We conclude the trial court was not barred by sections 7605 and 2030 from sanctioning Buzorius pursuant to section 271.
III. Discovery compliance
Sanctions pursuant to section 271 are warranted where a party fails to fully and timely respond to discovery concerning relevant financial records. (In re Marriage of Fong, supra, 193 Cal.App.4th at p. 292 [upholding sanctions imposed pursuant to section 271 where, among other things, party "failed to fully and timely respond to discovery concerning bank records, mortgage loan applications, refinancing, and rental income"]; In re Marriage of Tharp, supra, 188 Cal.App.4th at p. 1318 ["The history of [husband's] antics in thwarting discovery and the numerous motions to compel discovery that [wife] was forced to bring against [husband] clearly demonstrate that sanctions under section 271 were warranted."].)
Buzorius argues that the trial court erred in sanctioning him $7,500 because "documents were provided multiple times, in April, August and October." In support of that contention, Buzorius attached to his opening brief copies of emails from April, August, and October 2020, appearing to forward documents to Mueller's counsel. He also attached a proof of service from April 2020, indicating that Buzorius's counsel mailed discovery responses to Mueller's counsel. Last, in his reply brief Buzorius rehashes the evidence regarding the parties' long-running discovery dispute, contending that he fully complied with Mueller's discovery requests.
Buzorius also states that "[d]ue to repetitive denial by the Petitioner of receiving those documents, [he] filed the bank statements and additional documents with the court." However, it appears Buzorius filed the documents with the court in the DCSS case, not in the family law case.
In his brief, Buzorius asked for an opportunity to "demonstrate live to the court contents" of the links in these emails. We see no reason for such a demonstration and so informed Buzorius during oral argument.
Buzorius attached excerpts of various hearing transcripts as exhibits to his reply brief but did not make a motion to augment the record. (See Cal. Rules of Court, rule 8.155(a).) At oral argument Mueller asked that we not consider those materials. Even if we did, it would not change our view of this appeal.
We find no basis to reverse the trial court's order sanctioning Buzorius $7,500 for failing to adequately respond to discovery. Substantial evidence supports the conclusion that Buzorius repeatedly failed, despite several chances, to provide full and complete responses to Mueller's discovery requests, resulting in a significant increase in Mueller's attorney fees.
At the hearing on Mueller's initial motion to compel discovery on April 23, 2020, Buzorius's counsel promised his client would work "in good faith to make sure that all documents" he had access to were produced. Yet on June 5, 2020, Mueller had to file another motion to compel and submitted evidence that Buzorius's discovery responses remained incomplete. Moreover, she explained that when her counsel attempted to resolve the discovery dispute informally in early May 2020, Buzorius's counsel did not respond.
On July 23, 2020, when the court held a hearing on Mueller's renewed motion to compel, Buzorius still had not produced all responsive documents, prompting the parties' agreement that Buzorius would "make a full and complete production of all items requested" by August 22, 2020.
But at the ensuing August 27, 2020 hearing, Mueller's counsel explained to the court that Buzorius's discovery responses were still deficient. Mueller detailed those continued deficiencies in her September 24 and October 14, 2020 declarations.
We acknowledge Buzorius's efforts to prove to the trial court that he had fully responded to Mueller's discovery requests. But it was the trial court's role to evaluate that evidence; it is not this court's role to reweigh that evidence.
Put simply, by the October 22, 2020 hearing-nearly nine months after Mueller's January 30, 2020 discovery requests- substantial evidence supported the conclusion that Buzorius had failed to timely and adequately comply with Mueller's discovery requests, and that his substantial delay in complying with her discovery requests had frustrated settlement, discouraged cooperation between the parties, and increased Mueller's attorney fees. Thus, the trial court did not abuse its discretion in ordering the sanctions. (See § 271, subd. (a); In re Marriage of Fong, supra, 193 Cal.App.4th at p. 292; In re Marriage of Tharp, supra, 188 Cal.App.4th at p. 1318.) We therefore affirm the order imposing $7,500 in sanctions for Buzorius's discovery abuses.
IV. Mueller's finances
In his opening brief under the heading "Petitioner Lied About Her Finances," Buzorius cites section 7605, subdivision (a), and contends that "[b]oth parties should have access to legal representation." He further contends that "[a]lthough detailed financial aspects are not required in determining attorney fees compensation, certainly not truthful statements should not be allowed in the court." He then alleges that Mueller lied about her finances in various respects.
We construe this as an argument that Mueller was not entitled to sanctions pursuant to section 271 because she misled the court about her own finances. We reject this argument for several reasons.
First, Buzorius fails to identify any finding by the trial court that Mueller was dishonest about her finances, and it is not our role to make that finding ourselves. Second, Buzorius fails to cite legal authority supporting his assertion that a party is ineligible to obtain sanctions pursuant to section 271 due to the party's own conduct frustrating settlement and cooperation.Last, section 271 provides that "the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award." (§ 271, subd. (a).) Thus, even if Mueller had more income or assets than she claimed, it would not undermine the trial court's sanctions awards in her favor, which were well-supported by the evidence of Buzorius's conduct.
To the contrary, in In re Marriage of Fong, supra, 193 Cal.App.4th at page 292, the court rejected the argument that the trial court abused its discretion by awarding sanctions pursuant to section 271 in favor of a party whose own conduct had "frustrated settlement and cooperation between the parties and counsel." The court concluded that "section 271 does not necessarily require that the moving party be in compliance with particular obligations before moving for an award." (Id. at p. 293.)
DISPOSITION
The February 8, 2022 motion filed by Mueller to augment the clerk's transcript is granted. The trial court's November 24, 2020 orders are affirmed. Mueller is entitled to her costs on appeal.
WE CONCUR: LAVIN, J., RICHARDSON (ANNE K.), J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.