I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch.

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Cal. Prac. Guide Family L. Ch. 1-I

California Practice Guide--Family Law
Database updated July 2015
Judge William P. Hogoboom (Ret.) and Justice Donald B. King (Ret.); Contributing Authors: Judge Kenneth A.
Black (Ret.), Judge Thomas Trent Lewis, Michael Asimow, Bruce E. Cooperman
Chapter 1. The First Client Interview

I. Liability Concerns in Handling Clients Case

1. [1:421] Attorney Professional Negligence (Malpractice) Exposure
a. [1:422] Standard of care
(1) [1:422.1] Discovery pursuant to family centered case resolution plan presumed to satisfy attorneys duty of
care concerning existence of community property
b. [1:423] Damages liability
(1) [1:424] Economic losses
(2) Emotional distress
(a) [1:425] Generally not recoverable
(b) [1:426] Compareegregious malpractice; breach of fiduciary duty
c. [1:427] Compareordinarily no malpractice liability to third parties
(1) [1:428] No malpractice liability to

opposing party
new spouse

(2) [1:430] No malpractice liability to dissolution clients

(3) [1:431] No malpractice liability to custodial parent in county-initiated child support enforcement proceedings
2. [1:435] Tort Liability for Meritless Litigation and Abusive Litigation Tactics
a. [1:436] No malicious prosecution cause of action arising out of family law case
(1) [1:437] Rationale
(a) [1:437.1] Unique propensity for bitterness in family law cases
(b) [1:437.2] Sanctions remedy to curb abusive tactics at source
(c) [1:437.3] Chilling effect on meritorious motions/OSCs
(2) [1:438] Applicationno malicious prosecution liability for meritless subsidiary motions/OSCs
(3) [1:440.5] Applicationno malicious prosecution liability based on false child abuse allegations
(4) [1:440.10] Same result despite inadequacy of family law remedies
(5) [1:441] Compareordinary civil actions originating in family law proceedings
b. [1:442] Abuse of process
c. [1:443] Infliction of emotional distress
d. [1:444] Attorney-client civil conspiracy
e. [1:445] Litigation privilege defense ()
(1) [1:446] Torts subject to privilege

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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

3. [1:485] Sanctions Exposure for Bad Faith/Uncooperative Litigation Tactics: Unwarranted litigation
and litigation tactics (meritless motions/OSCs, etc.), although falling short of an actionable tort, are remediable
by the imposition of monetary sanctions. Indeed, as indicated earlier, sanctions are essentially the exclusive
remedy to redress meritless or frivolous motions and other subsidiary proceedings in an ongoing action
(1:436 ff.). [See generally, Bidna v. Rosen (1993) 19 CA4th 27, 37-38, 23 CR2d 251, 257-258; Green v.
Uccelli (1989) 207 CA3d 1112, 1123, 255 CR 315, 320-321]
[1:486] Reserved.
a. [1:487] Statutory and CRC authority: California state courts have no inherent power to assess monetary
sanctions. [Olmstead v. Arthur J. Gallagher & Co. (2004) 32 C4th 804, 809, 11 CR3d 298, 301; Bauguess v.
Paine (1978) 22 C3d 626, 638, 150 CR 461, 468] However, statutes and Rules of Court authorize exercise of
the sanctions power, some of which are particularly potent weapons in family law litigation. Briefly:
(1) [1:488] Fam.C. 271: Uniquely and exclusively applicable in family law actions, Fam.C. 271
empowers trial courts to order a party to pay attorney fees and costs as a sanction where the partys or his
or her attorneys conduct frustrates the policy of the law to promote settlement of litigation and, where
possible, reduce the cost of litigation by encouraging cooperation between the parties and attorneys.
[Fam.C. 271(a)]
Fam.C. 271 gives family law judges broad-based discretion to invoke their sanctions power as a means of
curbing any harassing, unwarranted or dilatory litigation actions or tactics when they occur and, to that
extent, may provide a more effective remedy than is now available in general civil litigation (see CCP
128.7, below). In an appropriate case, 271 sanctions may be assessed in addition to a need-based
attorney fees and costs award (Fam.C. 2030-2032); however, since the sanctions are imposed to punish
and deter uncooperative litigation tactics, no showing of financial need for the award is required.
[Fam.C. 271(a)]
Cross-refer: Fam.C. 271 sanctions are discussed in detail at 14:230 ff.
(2) [1:489] CCP 128.5/128.7: Fam.C. 271 (1:488) supplements, but does not supersede, other
sanctions statutes. Thus, family law courts also have the same authority as trial courts in general civil
actions to assess sanctions for certain bad faith/frivolous/harassing conduct.
(a) [1:489.1] CCP 128.5: Parties and/or their attorneys may be assessed reasonable expenses,
including attorney fees, incurred by another party as a result of bad-faith actions or tactics that are
frivolous or solely intended to cause unnecessary delay. [CCP 128.5 (amended eff. 1/1/15) (1/1/18
sunset date)]
Except for disclosures and discovery documents, 128.5 sanctions are appropriately assessed for any
frivolous (totally or completely without merit or for the sole purpose of harassing an opposing party)
or dilatory conduct (be it in the form of meritless pleadings, motions, responses, etc., or unwarranted
litigation behaviore.g., refusing to stipulate to an obviously well-taken motion).
[See CCP 128.5(b), (e); see also Marriage of Quinlan (1989) 209 CA3d 1417, 1422, 257 CR 850, 852
(decided under predecessor statute)substantial sanctions warranted for counsels delaying tactics in
connection with postdissolution motion matters; Marriage of Bergman (1985) 168 CA3d 742, 764, 214
CR 661, 675, fn. 20 (decided under predecessor statute)sanctions for Hs bad faith, dilatory tactics that
prolonged dissolution proceedings]

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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

CCP 128.5 sanctions must be imposed consistently with the standards, conditions, and procedures
set forth in CCP 128.7 (1:489.2). [CCP 128.5(f)]
(b) [1:489.2] CCP 128.7: CCP 128.7 (based on FRCP 11) makes every signature on pleadings and
other papers filed with the court (except for discovery documents) a certification of merits of the
document signed and empowers trial courts to assess monetary or nonmonetary sanctions against parties,
their attorneys or law firms responsible for violating the certification. [CCP 128.7]
Cross-refer: The subject of CCP 128.5 and 128.7 sanctions (including the comparative advantages
of Fam.C. 271 as a source of sanctions power) is treated in greater detail at 14:81 ff.
(3) [1:490] Other: Several other sanctions provisions are directed at more specific transgressions by
counsel or client. For example:
(a) [1:491] Property disclosure declaration noncompliance: Noncompliance with the declaration of
disclosure obligations in a marriage dissolution, legal separation or nullity proceeding (Fam.C. 2100 et
seq.) risks evidence/issue and monetary sanctions. [Fam.C. 2107(b) & (c); see 11:95 ff.]
(b) [1:492] False child abuse allegations: Monetary sanctions may be imposed for making a knowingly
false accusation of child abuse or neglect in a child custody proceeding. [Fam.C. 3027.1 (see 7:318.1
ff.); see also Fam.C. 3027.5(b) (limited custody/visitation or supervised visitation order against parent
who made knowingly false child sexual abuse report with intent to interfere with other parents lawful
contact with child; 7:319)]
(c) [1:492.1] Prohibited claim to marital benefits following conviction for attempted murder of, or
soliciting murder of, other spouse: A spouse convicted of attempting to murder the other spouse
(Pen.C. 664(a)) or soliciting the murder of the other spouse (Pen.C. 653f(b)) is not entitled to support
or to medical, life or other insurance benefits from the victim spouse, or to any share of the victim
spouses retirement benefits (Fam.C. 782.5, 4324).
In addition, the victim spouse, forced to defend against the convicted spouses claim to these benefits in
a marital proceeding, is entitled to an award of reasonable attorney fees and costs as a sanction.
[Fam.C. 274; see 14:76]
(d) [1:493] Discovery abuse: Monetary, issue, evidence and terminating sanctions are available to
curb discovery misuse. [CCP 2023.030; see 11:392 ff.]
(e) [1:494] Court order and rules violations: Monetary and other sanctions may be imposed for
violations of court orders and/or local court rules. [CCP 177.5 & 575.2; see 14:106 ff.]
(f) [1:495] Frivolous appeals: And, appellate courts may assess monetary sanctions for taking a
frivolous or dilatory appeal. [CCP 907; CRC 8.276(e); see 16:235 ff.]
[1:496 - 1:499] Reserved.
4. [1:500] Pro Per Vexatious Litigant Order: Aside from the sanctions remedies noted above, a pro per
litigant who repeatedly files unmeritorious petitions, applications or motions (other than a discovery motion) in
a Family Code proceeding is subject to the vexatious litigant statutes applicable in general civil actions.
[CCP 391.7(d); see also CCP 391(b) (defining vexatious litigant); and Fam.C. 210CCP 391 et seq.
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