Cal. Prac. Guide Family L. Ch.

14-A
California Practice Guide: Family Law
Judge William P. Hogoboom (Ret.), Justice Donald B. King (Ret.), Contributing Authors: Judge Kenneth A. Black
(Ret.), Judge Thomas Trent Lewis, Michael Asimow, Bruce E. Cooperman
Chapter 14. Attorney Fees, Costs And Sanctions
A. Fees And Costs Awards
h. Amount of sanction
(1) [14:245] Not limited to consequential expenses: Fam.C. 271, unlike other sanctions statutes (e.g., CCP
128.7, 14:89), does not require a direct correlation between the amount of the sanction imposed and expenses
incurred in resisting the sanctionable conduct. Thus, potentially greater sanctions are awardable under Fam.C.
271. [Marriage of Corona (2009) 172 CA4th 1205, 12261227, 92 CR3d 17, 35; see Marriage of Falcone & Fyke
(2012) 203 CA4th 964, 138 CR3d 44it is of no moment that some portion of 271 sanctions can be pigeonholed outside actual costs incurred by moving party in resisting sanctionable conduct]
Moreover, under appropriate circumstances, the family court may impose 271 sanctions for attorney fees incurred
in a different case. [See Burkle v. Burkle (2006) 144 CA4th 387, 400, 403, 50 CR3d 436, 445, 448, fn. 7]
(a) [14:245.1] Compensation for all consequential fees/costs not required: By the same token, there is no
minimum limit on a 271 sanctions assessment. Thus, nothing in the statute requires that the sanction imposed
compensate for all fees and costs expended as a result of the sanctionable conduct. [Marriage of Battenburg
(1994) 28 CA4th 1338, 13451346, 33 CR2d 871, 875]
(2) [14:246] Cannot impose unreasonable financial burden: Other limitations unique to 271 place an ultimate
cap on the awardable amount:
While need is irrelevant, the court must take into consideration all evidence concerning the parties
incomes, assets, and liabilities. And in no event may the amount of the sanction impose an unreasonable
financial burden against the sanctioned party. [Fam.C. 271(a); Marriage of Fong (2011) 193 CA4th 278, 291,
123 CR3d 260, 270 (but no showing trial court failed to consider sanctioned partys ability to pay); Marriage of
Lucio (2008) 161 CA4th 1068, 1083, 74 CR3d 803, 814]
In effect then, a 271 sanction must be scaled to the payors ability to pay. [Marriage of Falcone & Fyke (2008)
164 CA4th 814, 828, 79 CR3d 588, 601; see Marriage of Quay (1993) 18 CA4th 961, 969, 22 CR2d 537, 542, fn.
2party requesting fees need not show need, but such an award should always be made in light of the parties
financial circumstances]
(a) [14:247] Rationale: [U]nless trial courts scale any such awards to the comparative wealth of the
parties they may discourage the ... [sanctioned] economically weaker party from filing actions she or he
should and from pursuing those actions with the vigor they deserve. [Marriage of Norton (1988) 206 CA3d
53, 60, 253 CR 354, 358 (brackets added)]
Therefore, trial courts should take account of the comparative wealth of the competing litigants and the
effect of wealth disparities on litigation behavior when they fashion costs and fees awards pursuant to
271. [Marriage of Norton, supra, 206 CA3d at 60, 253 CR at 358 (emphasis added)]

(b) [14:248] Distinguishcomparative wealth irrelevant to propriety of sanction award: Comparative

wealth bears only on the amount of the 271 sanctions assessment. Unlike 2030 need-based awards, the
parties relative circumstances are irrelevant to the determination of whether to make the award. [Fam.C.
271(a)applicant spouse need not demonstrate financial need]
[14:249] Reserved.