APPEAL from a judgment of the Superior Court of San Diego County, Lorna A. Alskne, Judge. Reversed with instructions. (Super. Ct. No. D458561).
The opinion of the court was delivered by: Benke, Acting P. J.
CERTIFIED FOR PUBLICATION
We are called on in this case to decide an issue of first impression in this state; namely, when must a party falsely accused of child abuse or neglect allegations in a child custody proceeding move for sanctions under Family Code1 section 3027.1 against the person or persons who made such allegations. Because section 3027.1 is silent on the issue, absent further direction from the Legislature we conclude equitable principles apply to determine the timing of a section 3027.1 sanctions motion. Based on such principles and the public policy of ensuring the best interest of children prevails in child custody cases, we further conclude a party moving for section 3027.*fn1 sanctions must file his or her motion on or before the earliest of 60 days after the judgment or order exonerating him or her from such allegations is served, or 180 days from the entry of such judgment or order.
Plaintiff and appellant Robert L. dated Catherine D. briefly and they had one child together, a daughter.*fn2 During the course of child custody proceedings involving their daughter, Robert contends Catherine falsely accused him of child abuse or neglect. Almost two years after Catherine initially made such allegations against Robert, the court entered judgment granting Robert full legal custody of their daughter, and exonerating him of such allegations.
One day less than a year after the final order, Robert moved for sanctions against Catherine and one of her former attorneys, objector and respondent Jeffrey C. Fritz, on various grounds, including those noted under section 3027.1 for the false child abuse or neglect accusations Catherine made against Robert, which Fritz, as her attorney of record, repeated during the course of representing Catherine in the custody proceedings. Section 3027.1 gives a court discretion to impose monetary sanctions against a party, the party's attorney or a witness if the moving party establishes that the accusation of child abuse or neglect was made in a child custody proceeding, the accusation was false and the person or persons making it knew it was false when the accusation was made. Robert sought in excess of $750,000 in sanctions against Catherine and Fritz for the attorney fees and costs he incurred in the child custody proceedings, of which he claims at least $250,000 was to defend himself from the child abuse or neglect accusations.
Fritz alone moved to quash Robert's section 3027.1 motion, arguing it was untimely and deprived the court of subject matter jurisdiction. The court disagreed, but on its own treated the motion to quash as a motion to strike. The court applied the one-year limitations period under Code of Civil Procedure section 340, subdivision (c), applicable to defamation, analogizing a "claim for damages for false accusations" under section 3027.1 to slander, and struck any allegations of child abuse or neglect not made within a year of the filing of Robert's motion. The court dismissed the motion against Fritz, but not Catherine, after Robert acknowledged the motion could not succeed in light of the court's ruling.
On appeal, Robert argues the court erred when it borrowed and applied to section 3027.1 the one-year limitations period under Code of Civil Procedure section 340, subdivision (c). Robert instead claims the court should have applied a presumptive deadline under the equitable doctrine of laches based on the tort of malicious prosecution, which he claims is the most analogous tort to a section 3027.1 sanctions motion. Robert thus argues the deadline to file his motion was two years from the date of the judgment exonerating him.
As we explain, we conclude that neither a two-year limitations period based on malicious prosecution nor a one-year period based on defamation govern the timing of a motion for sanctions under section 3027.1. There being no statute and no rule setting a deadline to move for section 3027.1 sanctions, absent further direction from the Legislature we agree with Robert that equitable principles apply to determine the timing of a section 3027.1 sanctions motion.
As we further explain, in light of the Legislature's findings and declaration that the public policy of ensuring the health, safety and welfare of children shall be the "primary concern" of courts in determining the best interest of children in child custody proceedings, and to ensure consistency among related statutes in the Family Code, we conclude a party moving for section 3027.1 sanctions should file his or her motion on or before the earliest of 60 days after the judgment or order exonerating him or her from child abuse or neglect allegations is served, or 180 days from the entry of such judgment or order. These deadlines are drawn from California Rules of Court,*fn3 rules 3.1702, 8.104 and, if appropriate, rule 8.108, applicable to motions for recovery of attorney fees in civil proceedings, which rules also apply in family law proceedings. (See rule 5.21.) We further conclude that if a party files his or her section 3027.1 motion after the presumptive deadlines set forth in these rules, the burden shifts to the movant to show that his or her delay was excusable and that such delay did not result in undue prejudice to the opposing party or person who is the subject of the motion.
Here, Robert did not file his section 3027.1 sanctions motion until one day less than a year after the judgment exonerating him from Catherine's allegations of child abuse or neglect. However, because this is an issue of first impression in our state, we conclude it would be unfair to Robert to apply this procedural rule retroactively. We therefore reverse the order of the trial court dismissing Robert's section 3027.1 sanctions motion against Fritz and remand for the trial court to consider that motion, on its merits.
FACTUAL AND PROCEDURAL BACKGROUND
Robert and Catherine dated a few months in 1999, but never married. They had one child together, a daughter born in April 2000. By stipulation and order, the court awarded Robert sole physical custody, and Catherine and Robert joint legal custody, of their daughter.
A. Accusations of Child Abuse or Neglect by Catherine
In early September 2003, Catherine filed an order to show cause seeking modification of child custody, child visitation and child support, an order for psychological evaluation and attorney fees and costs (custody OSC). In support of her custody OSC, Catherine filed a declaration Robert contends falsely accused him of child abuse or neglect (hereinafter, the child abuse or neglect allegations).*fn4
In her declaration, Catherine described Robert's parenting and their daughter's living conditions as follows:
"[S]ince the birth of our daughter, [Robert] has demonstrated that his parenting of our daughter is neglectful, un-nurturing and dangerous to our daughter's well being. [Robert's] parenting of our daughter has proven to be wholly adverse to the best interest of our daughter.
" . . . Since our daughter's birth, she has been raised in [Robert's] residence by a series of nannies too numerous to count. Our daughter has been neglected emotionally and deprived of the opportunity to be nurtured and raised by a parent or individual with whom she has a relationship . . . and is bonded to. [Our] [t]hree (3) year old [daughter] has virtually been raised by strangers.
" . . . Additionally, our daughter's living conditions in [Robert's] home are filthy and hazardous. [Robert] has numerous cats, dogs and birds totaling more than ten animals that live inside his residence and are permitted to urinate and defecate freely throughout the house. The smell of the inside of [Robert's] home is unbearable and the animal feces and waste is repulsive. Our daughter has been bitten by [Robert's] dog . . . and scratched by [his] cats. These living conditions coupled with [Robert's] psychosis is the reason why there have been numerous nannies and housekeepers, too multiple to count, who have worked for [Robert]."
Catherine's attorney of record when she filed her custody OSC was Fritz's late law partner, Robert Basie. When Basie passed away, Fritz substituted in as Catherine's attorney of record and represented her from September 11, 2003 (after she filed her declaration in support of the custody OSC) to August 10, 2004.
B. Robert is Awarded Sole Legal Custody of Their Daughter
Although not clear from the record, at some point after August 10, 2004, Catherine hired new counsel, William E. Blatchley, to represent her in the custody dispute and at trial, which ended in early May 2005. Judgment was entered on July 19, 2005, and Robert was awarded sole legal custody and primary physical custody of their daughter. The court found the evidence "strongly supports a finding that [Robert] is an effective, loving, and appropriate parent and caregiver for [their daughter]," and "did not support the imposition of any restriction on [Robert's] care or custody of [their daughter]." The parties agree it was this finding that exonerated Robert from the child abuse or neglect allegations.
Catherine subsequently opposed Robert's post-judgment motion to move away set for hearing in May 2006. In connection with her opposition, Catherine resubmitted her custody OSC declaration containing the child abuse or neglect allegations, made new accusations of sexual abuse against Robert that he contends were unfounded, and asserted Robert's psychologist failed to report such abuse after she brought it to the psychologist's attention. She also sought an award of attorney fees from Robert to enable her to hire legal counsel to represent her in the May 2006 hearing.
Fritz did not represent Catherine at the May 23, 2006, hearing on Robert's move-away motion. However, Fritz was present for that hearing, after appearing on an unrelated matter in the same courtroom.*fn5 On June 7, 2006, Fritz briefly substituted back into the case as counsel of record for Catherine. Robert, who at the time was representing himself, personally served Fritz with a copy of the judgment entered on July 19, 2005, "to ensure that Mr. Fritz was made aware of the matters that remained pending, and that [the trial court] had found [Robert] to be an 'excellent caregiver' of [their daughter]." The matters pending included, among other things, the finalization of the move away order and other financial issues the court had bifurcated from the custody proceeding.
C. Robert Attempts to Settle with Catherine before Filing His Sanctions Motion
In mid-June 2006, Robert contacted Fritz and Catherine in writing, stating he intended to file a motion for sanctions under sections 271 and 3027.1, as well as under Code of Civil Procedure section 2023, "if remaining matters were not settled."*fn6 Robert wanted to reach a "global settlement for peace of mind" and for "[their daughter's] sake." Shortly thereafter, Robert hired legal counsel who contacted Fritz in late June 2006 requesting he stipulate to bifurcate the issues of liability and a monetary award in the (instant) sanctions motion Robert intended to file.
Robert contends Fritz told Robert's legal counsel on July 14, 2006, that Catherine was coming to Fritz's office to sign the settlement agreement. Based on this representation, Robert waited to file his sanctions motion. However, when neither Robert nor his counsel heard from Fritz regarding settlement, Robert went forward and filed his motion on July 18, 2006. After doing so, Robert discovered Fritz had withdrawn as Catherine's attorney of record a day earlier, which Robert claims was done so Fritz could claim he was not Catherine's attorney of record for purposes of the section 3027.1 motion.
Although Robert had already filed his sanctions motion, he wrote Catherine on July 20 and again on July 27, 2006, seeking a global settlement with her. Robert represented to Catherine that if she were willing to enter into a global settlement with him, he would take his sanctions motion against her and Fritz off calendar. According to Robert, Catherine did not respond to his offer.
D. Robert's Motion for Sanctions
1. Grounds for Sanctions under Section 3027.1
Robert, in propria persona, filed his motion for sanctions against Catherine and Fritz. Specifically against Fritz, Robert alleged:
Fritz "knew from early on that these child abuse/neglect accusations [by Catherine] were false, but nevertheless continued to assert them as a basis for his client's meritless and unsuccessful attempts to obtain sole custody of [our daughter], child support and his excessive and unnecessary attorney fees. For example, I believe that Mr. Fritz knew the allegations of his client were false because:
"(a) [Fritz] was present at [Catherine's] October 13, 2003 deposition [when Catherine] . . . admitted I was a good parent and either recanted or discounted her accusations that I was an abusive/negligent parent. . . .
"(b) [Fritz] was served on October 14, 2003 with 14 third-party declarations, including [from our daughter's] school master and pediatrician, which refuted [Catherine's] accusations. . . .
"(c) [Fritz] took my deposition on October 15, 2003 and reviewed the third party declarations and the notes and cards written by [Catherine], as well as photos, which refuted the neglect/abuse accusations.
"(d) [Fritz] received the October 16, 2003 [family court services] report in which the senior mediator found no evidence or reason to change my custody of [our daughter]. . . .
"(e) [Fritz] had my October 14, 2003 Opposition Declaration and my October 30, 2003 Reply Declaration, which further refuted [Catherine's] child abuse and neglect accusations. . . .
"(f) [Fritz] subpoenaed, without my objection, and received [our daughter's] school and medical records, which showed no evidence of abuse or neglect. . . .
"(g) [Fritz] received psychological testing results in 2004 from two agencies for [our daughter], which showed no evidence of abuse or neglect. . . ."
Moreover, Robert's sanctions motion noted Fritz was present in the courtroom during Robert's May 2006 move away motion, although, as previously noted, Fritz was not then Catherine's attorney of record. Nonetheless, Robert argued Fritz substituted in and once again became Catherine's attorney of record shortly after that hearing, and while her counsel Fritz "took no steps to disavow or withdraw the filings (for the move away proceeding of which he became counsel of record for all purposes) of child abuse and neglect against me which were previously refuted in the Court's Statement of Decision, attached and incorporated into the July 19, 2005 judgment."
Robert sought sanctions against Catherine and Fritz "well in excess of $250,000," which included costs for attorneys, psychological testing, court transcripts, process servers and depositions, among other items, Robert incurred to defend himself against the child abuse or neglect accusations made by Catherine and asserted by Fritz in the custody dispute involving their daughter. Robert's request for ...