Filed 7/21/26 Marriage of Diaz and Zesati CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re the Marriage of B338823, B343142
EVANGELINA DIAZ and
ALBERT ZESATI. (Los Angeles County
Super. Ct. No.
19PDFL00322)
EVANGELINA DIAZ,
Respondent,
v.
ALBERT ZESATI,
Appellant.
APPEALS from a judgment and order of the Superior Court
of Los Angeles County, Harvey A. Silberman, Joel L. Lofton, and
Patricia D. Nieto, Judges. Affirmed in part, reversed in part.
Decker Law, James Decker and Griffin Schindler for
Appellant.
Salisbury, Shaw, Lee & Tsuda, Serine Tsuda and Jason
Jen-Sen Lee for Respondent.
_________________________
Albert Zesati appeals from the judgment and posttrial
order in this marital dissolution action, contending the family
court erred in granting Evangelina Diaz’s motion in limine to
exclude Zesati’s exhibits at trial and denying Zesati’s request for
reimbursement of claimed separate property funds used to
purchase the family home. Zesati also argues the court abused
its discretion in issuing sanctions against him and erred in failing
to address the distribution of certain property in the judgment.
We conclude the court abused its discretion in imposing sanctions
based on Zesati’s decision to proceed to trial without
documentary evidence of his reimbursement claims. We
otherwise affirm the judgment and posttrial order.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Petition for Dissolution and Pretrial Proceedings
Diaz and Zesati were married on September 7, 2002. On
February 25, 2019 Diaz filed a petition for dissolution of the
marriage. The family court entered a judgment of dissolution on
June 28, 2022, reserving property distribution issues for trial.
During the three-and-a-half years this case was pending
before trial, Zesati repeatedly failed to comply with court orders
regarding discovery and pretrial filings. In October 2019 the
parties entered into a stipulation and order for Zesati to pay Diaz
spousal support and child support for their three children. As
part of the order, the family court ordered Zesati to produce
documents in response to Diaz’s discovery requests within
2
20 days without objection. After Zesati failed to fully comply,
Diaz filed a request for order compelling Zesati to produce the
documents. Zesati produced documents in September 2020. The
production consisted of 31 documents, including two 2008 bank
statements and tax returns going back to 2001.
In October 2021 the family court ordered the parties to
attend a mandatory settlement conference (MSC) and informed
them that “[a]ll documentary evidence along with witness lists
and exhibit lists must be presented at the MSC or may be
excluded from Trial.” The case failed to settle at the MSC, and at
a trial-setting conference in June 2022, the court again cautioned
that documents not previously produced would not be admitted at
trial. The court set the trial for October 18, 2022.
On October 4, 2022 Zesati’s attorney, Ashley Andrews,
moved to be relieved as counsel. The family court heard the
motion on October 18, 2022 (which was intended to be the first
day of trial). Andrews explained she was seeking to withdraw as
counsel based on California Rules of Professional Conduct,
rule 1.16(a)(1), which prohibits a lawyer from representing a
client when the client is bringing an action “without probable
cause for the purpose of harassing or maliciously injuring any
person.” The court asked Andrews if she felt personally
threatened, and she replied, “I was terrified, your honor. At this
point I’m terrified. My family is terrified.”1 After further
discussion, Zesati agreed to release Andrews as his attorney. The
court continued the trial to December 12, 2022 but clarified it
was not extending the time to file pretrial documents.
1 During trial, the family court recounted the October 18,
2022 hearing, noting that Andrews brought a bodyguard with her
and “was physically shivering in the courtroom.”
3
B. Diaz’s Motion in Limine
Zesati retained new counsel and filed a trial brief and
exhibit and witness lists on December 5, 2022. The exhibit list
included 108 proposed exhibits. Diaz filed a motion in limine
seeking to exclude all of Zesati’s exhibits and witnesses (other
than for impeachment purposes) because the proposed exhibits
included documents that had not been produced to Diaz by the
September 2020 deadline and the exhibit and witness lists were
not produced prior to the 2021 MSC. Further, the exhibit and
witness lists were not filed five court days prior to the initial trial
date of October 18, 2022, as required by the Superior Court of Los
Angeles County, Local Rules, rule 5.15(b).
At the outset of the trial on December 12, 2022 the family
court heard argument on Diaz’s motion in limine. Zesati’s
counsel explained he had received an exhibit list from Andrews,
but he did not know why Andrews had not filed it prior to the
October 2022 trial date. Zesati’s counsel stated “many” of his
proposed exhibits had been produced in discovery and others
were documents that Diaz was aware of because she “had
custody” of them during the marriage. He argued Zesati would
be unduly prejudiced if he could not present the evidence at trial.
The family court granted the motion in limine, excluding
all exhibits beyond the 31 proposed exhibits produced and
identified by Zesati in September 2020.
C. Evidence at Trial
Diaz and Zesati were the only witnesses at trial. As
relevant to this appeal, the main issue at trial was division of the
proceeds from the sale of the family home. Zesati claimed he had
used his separate funds to purchase the home, and he sought
4
reimbursement of his separate funds from the proceeds from the
sale of the home pursuant to Family Code section 2640.2 Zesati
also argued that approximately $100,000 in a bank account in his
name belonged to his parents.
1. The family home
Zesati testified that in 2011 he purchased a home at a
foreclosure sale for approximately $569,000. Title to the property
was initially held by a trust; Zesati was the sole beneficiary. In
April 2012 Diaz, as trustee of the trust, signed a grant deed
conveying the property to “Albert Zesati and Evangelina Diaz,
husband and wife as joint tenants.” Zesati testified that he had
removed Diaz as trustee of the trust prior to Diaz signing the
grant deed and he did not know she had signed the grant deed.
However, Zesati admitted the couple refinanced the property in
May 2012, and the deed of trust executed in connection with the
refinance was signed by Zesati and Diaz and listed the
“[b]orrower” as “Albert Zesati and Evangelina Diaz, husband and
wife as joint tenants.” Zesati and Diaz sold the house in 2021,
and the $1.1 million in proceeds were being held in a joint bank
account awaiting the family court’s distribution order.
Zesati testified the entirety of the $569,000 used to
purchase the home came from money he had saved and invested
long before the marriage. Those funds were held in an account at
Eastern International Bank. Zesati stated he never deposited his
salary into that account. Zesati also earned income from
investing in a bar with his cousin and by flipping houses. During
2 Further undesignated statutory references are to the
Family Code.
5
the marriage he earned approximately $200,000 from his
investment in the bar. He lost money on some of his investments
in houses, but he acknowledged he made approximately $43,000
on others. Zesati claimed he had used his separate funds from
before the marriage to make these investments. Zesati did not
have any documentary evidence to corroborate his claims.
Diaz testified Zesati never shared financial information
with her. She deposited her salary into her own bank account
during the marriage. She initially testified the funds used to
purchase the family home had been earned and saved by Zesati
and Diaz during the marriage; however, she later stated she
could not be sure that all the funds used to purchase the house
came from savings during the marriage. Diaz did not know the
exact amounts that Zesati earned from his investments.
2. The CIT bank account
Zesati testified he had a bank account at CIT bank with a
balance of $240,000. He was “100 percent certain” that $100,000
of the funds in the account belonged to his parents. His mother
had received a $50,000 settlement from a car accident in 2012,
and she had asked Zesati to hold the funds for her. Zesati could
not recall whether he put the money directly into the CIT account
or into another bank account first. Another $50,000 belonged to
his father, which was his father’s “life savings.” Contrary to this
testimony, Zesati stated in his deposition that “whatever is left in
the CIT bank account” was what remained from the parties’ cash-
out refinance in 2012.
6
D. The Family Court’s Ruling
In its August 11, 2023 written order, the family court found
the family home was community property, and the court denied
Zesati’s request for reimbursement of separate property pursuant
to section 2640. The court explained that when tracing separate
property for purposes of reimbursement, “the evidence must be
fairly exhaustive and be sufficient to establish not simply that
separate property funds were available to make the payments
but that they were actually used.” The court noted it had
admonished Zesati that “some level of documentary tracing was
necessary in most cases.”
The family court recounted portions of Zesati’s testimony,
including that “[Zesati] testified that he began accumulating his
separate property monies from the time he was a little boy selling
oranges in the neighborhood. He testified that by the time he
married [Diaz] he had hundreds of thousands of dollars saved.
He testified that he earned additional money by flipping a house
and investing in a bar during the marriage, but he considered
these to be separate property earnings since he accumulated the
funds for these investments during his childhood, teen years, and
young adulthood. He surmised that since the only community
property monies were from the respective salaries of the parties,
the community could not have contributed to the down payment
on the residence since after payment of the community bills there
was no community income remaining. . . .”
The family court explained that Zesati “did not supply a
single piece of documentary evidence to support his
claim. . . . [Zesati] merely relied upon his testimony as to his
accumulation of separate property income” prior to the marriage.
The court stated, “This attempt to prove up his [section] 2640
7
reimbursement claim without any records as evidence is
generally not supported by the law.” Accordingly, the court found
the proceeds from the sale of the family home should be shared
equally by the parties.
Regarding the CIT bank account, the family court similarly
stated “there was no documentary evidence presented as to this
matter” and “there was some testimony by [Zesati] at trial that
contradicted his testimony at his deposition.” The court noted it
“had no reason to disbelieve [Zesati]; however, that does not
eliminate [his] burden of proof regarding this matter.
Considering the absence of sufficient evidence as to the origins of
the funds in the account, the Court finds that [Zesati] has not
upheld his burden of proof.” The court ordered the funds in the
bank account to be divided equally.
The family court also awarded sanctions to Diaz pursuant
to section 271 based, in large part, on Zesati’s “failure to
acknowledge and settle the two major claims in the case, for
which [Zesati] had no supporting evidence.” The court recounted
that it had, over the course of this case, “repeatedly stated that
case law requires, in most circumstances, that some documentary
evidence support [a section 2640] claim.” On one occasion,
Zesati’s counsel had “stated on the record that there was no
evidence available to support a number of the claims.”
Nevertheless, Zesati brought the case to trial absent any
documentary evidence, causing Diaz “to expend substantial
amounts of attorney fees in both preparing for the trial and
conducting the trial.” The court found Zesati had the ability to
pay sanctions and awarded $27,000 to Diaz for “the hours spent
in preparation . . . as well as actual trial time spent on meritless
claims.”
8
The family court entered judgment on February 7, 2024.
Zesati moved for a new trial on February 13, 2024, and the
motion was denied by operation of law on April 22, 2024. (Code
Civ. Proc., § 660, subd. (c).)
E. Postjudgment Sanctions
On June 3, 2024 Diaz filed a request for order seeking
sanctions of $100,000 from Zesati pursuant to Code of Civil
Procedure section 128.5 and Family Code section 271. The
request was based on Zesati’s filing of a purportedly frivolous
request for change in custody of the couple’s children. After a
hearing on September 20, 2024, the family court granted the
sanctions motion and issued sanctions against Zesati pursuant to
section 271 in the amount of $9,500. The court entered a written
order awarding sanctions on October 17, 2024.3
F. Notices of Appeal
Zesati timely appealed from the family court’s February 7,
2024 judgment (case No. B338823) and from the October 17, 2024
order granting the sanctions motion (case No. B343142).
3 Judge Harvey A. Silberman presided over the trial but
retired in early 2024. Judge Joel L. Lofton conducted the
sanctions hearing and granted the sanctions motion in
September 2024. The court’s order after hearing was signed by
Judge Patricia D. Nieto.
9
DISCUSSION
A. The Family Court Did Not Abuse Its Discretion in
Excluding Evidence Not Identified or Produced by the
Applicable Deadline
“‘“Generally, a trial court’s ruling on an in limine motion is
reviewed for abuse of discretion.”’” (Inzunza v. Naranjo (2023)
94 Cal.App.5th 736, 742; accord, Mardirossian & Associates, Inc.
v. Ersoff (2007) 153 Cal.App.4th 257, 269 [“As rulings on the
admissibility of evidence, they are subject to review on appeal for
abuse of discretion.”].) A ruling constitutes an abuse of discretion
only if it is “‘so irrational or arbitrary that no reasonable person
could agree with it.’” (Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 773; accord, Sanchez
v. Kern Emergency Medical Transportation Corp. (2017)
8 Cal.App.5th 146, 154.)
Where a party fails repeatedly and willfully to produce
documents and violates court orders regarding discovery,
preclusion of evidence may be an appropriate remedy. (Reales
Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 474; Biles
v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327; see also
Code of Civ. Proc., § 2023.030, subd. (c) [“The court may impose
an evidence sanction by an order prohibiting any party engaging
in the misuse of the discovery process from introducing
designated matters in evidence.”].)
It is undisputed that Zesati failed to fully produce
documents in response to the family court’s order in October 2019
(requiring documents be produced by November 2019). The court
then cautioned Zesati that any evidence not produced by
September 29, 2020 would be excluded from trial. In response,
Zesati produced 31 documents, after which the court reminded
10
him in October 2021 (prior to the MSC) and again in June 2022
that any documents he had not previously produced would be
excluded at trial. Further, when the court on October 18, 2022
continued the trial date after Andrews’s withdrawal, the court
again clarified that it was not extending the deadline to file
pretrial documents. Despite these repeated admonitions, Zesati’s
counsel filed witness and exhibit lists the week before the
December 5, 2022 trial, identifying more than 70 previously
unidentified documents as proposed exhibits. In addition,
Zesati’s counsel failed to provide any explanation for his failure to
produce the documents earlier. He admitted that Andrews had
given him an exhibit list when he was retained, but he failed to
explain why it had not been filed prior to the initial trial date.
In light of Zesati’s failure to comply with the court’s orders
to produce documents and the court’s repeated warnings that
failure to comply would result in exclusion of evidence,
compounded by Zesati’s failure to provide any explanation for his
failure to produce the documents earlier, the family court did not
abuse its discretion in granting the motion in limine and
excluding documents Zesati had not produced by the initial
September 2020 deadline. (See Reales Investment, LLC v.
Johnson, supra, 55 Cal.App.5th at p. 472 [trial court did not
abuse its discretion by excluding evidence not timely produced or
identified pursuant to local rules].)
Zesati argues at length that the withdrawal of his attorney
(Andrews) provided good cause for his failure to produce exhibit
and witness lists five days prior to the initial trial date in
October 2022, as required by the local rules. However, Zesati’s
focus on this deadline is misplaced. As the family court explained
in its ruling on Diaz’s motion in limine, the court had previously
11
ordered that any documents not identified by September 2020
would be excluded from trial. Thus, even if Zesati’s counsel had
filed an exhibit list by the initial trial date, this would not have
rectified Zesati’s failure to produce documents by the deadline
two years earlier, and he would still have been precluded from
introducing evidence beyond the 31 documents he initially
identified.
B. The Family Court Did Not Err in Applying Section 2640
1. Governing law and standard of review
“Family Code section 760 states the basic presumption
that, except as otherwise provided by statute, all property
acquired by a married person during marriage, while domiciled in
California, is community property. Each spouse has a ‘present,
existing, and equal’ interest in the community property. (§ 751.)
On the other hand, property acquired before marriage, or after
separation, or at any time by gift, bequest, devise, or descent, is
separate property. (§§ 770, subd. (a), 771.)” (In re Marriage of
Ciprari (2019) 32 Cal.App.5th 83, 91, fn. omitted.) Section 2640
provides that where a party has contributed separate funds to the
acquisition of community property, “the party shall be
reimbursed for the party’s contributions to the acquisition of
property of the community property estate to the extent the party
traces the contributions to a separate property source.”4 (§ 2640,
4 Section 2640, subdivision (b), states in its entirety: “In the
division of the community estate under this division, unless a
party has made a written waiver of the right to reimbursement or
has signed a writing that has the effect of a waiver, the party
shall be reimbursed for the party’s contributions to the
acquisition of property of the community property estate to the
extent the party traces the contributions to a separate property
12
subd. (b); see In re Marriage of McLain (2017) 7 Cal.App.5th 262,
273 (McLain).)
Whether the spouse claiming a separate property interest
has adequately met his or her burden of tracing to a separate
property source is a question of fact. (In re Marriage of Cochran
(2001) 87 Cal.App.4th 1050, 1057-1058; In re Marriage of Braud
(1996) 45 Cal.App.4th 797, 823.) We review the family court’s
factual findings for substantial evidence. (In re Marriage of
Davila & Mejia (2018) 29 Cal.App.5th 220, 226; accord, Cochran,
at p. 1058.) However, “‘[i]n a case where the trier of fact has
determined that the party with the burden of proof did not carry
its burden and that party appeals, “it is misleading to
characterize the failure-of-proof issue as whether substantial
evidence supports the judgment [or order].” [Citations.] Instead,
“where the issue on appeal turns on a failure of proof at trial, the
question for a reviewing court becomes whether the evidence
compels a finding in favor of the appellant as a matter of law.”’”
(Estes v. Eaton Corp. (2020) 51 Cal.App.5th 636, 651; accord,
Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal.App.5th 972, 978-
979.) Where the issue on appeal turns on whether the trial court
properly applied the governing law, we review the question de
novo. (In re Marriage of G.C. & R.W. (2018) 23 Cal.App.5th 1,
23.)
source. The amount reimbursed shall be without interest or
adjustment for change in monetary values and may not exceed
the net value of the property at the time of the division.”
13
2. The family court applied the correct evidentiary
standard to Zesati’s claims for reimbursement
Zesati argues the family court erred by denying his
separate property reimbursement claims solely on the ground
that he did not present documentary evidence. While we agree
with Zesati that documentary evidence is not required to prove a
section 2640 claim, the court did not deny his reimbursement
claim based solely on his failure to provide documentary
evidence.
Section 2640 does not specify a particular methodology a
party must employ to trace separate property, nor does it require
specific types of evidence. Typically, “tracing is done either
directly, or by a process of elimination whereby a spouse shows
the exhaustion of available community funds at the time of
acquisition.” (In re Marriage of Stoll (1998) 63 Cal.App.4th 837,
841.) As the Supreme Court explained in See v. See (1966)
64 Cal.2d 778, 783-784 (See) with respect to a husband’s claimed
separate property interest, “The [community property]
presumption applies when a husband purchases property during
the marriage with funds from an undisclosed or disputed source,
such as an account or fund in which he has commingled his
separate funds with community funds. [Citation.] He may trace
the source of the property to his separate funds and overcome the
presumption with evidence that community expenses exceeded
community income at the time of acquisition. If he proves that at
that time all community income was exhausted by family
expenses, he establishes that the property was purchased with
separate funds.” Furthermore, a “husband may protect his
separate property by not commingling community and separate
assets and income. Once he commingles, he assumes the burden
14
of keeping records adequate to establish the balance of
community income and expenditures at the time an asset is
acquired with commingled property.” (Id. at p. 784.)
Some courts have interpreted the record-keeping language
in See to mean that “tracing requires documentary proof because
our Supreme Court has held records must be kept, and the point
of keeping records is to offer them in court as evidence.”
(McLain, supra, 7 Cal.App.5th at p. 274.) However, we do not
read See to establish such a rigid standard. The Supreme Court
in See did not state that records “must be kept”; rather, it held
the burden of adequately establishing a separate property
reimbursement claim falls on the spouse asserting the claim.
The court in See contemplated that such a burden could be met
by “keeping records,” but it did not hold that tracing separate
funds can never be done without documentary evidence or that a
separate property claim without documentary corroboration
should be denied as a matter of law.
Moreover, although the Court of Appeal in McLain stated
that “records must be kept,” it went on to review the parties’ trial
testimony and found the “testimony does not provide substantial
evidence for tracing Husband’s separate property.” (McLain,
supra, 7 Cal.App.5th at pp. 274-275.) Other courts have similarly
concluded that tracing separate property interests does not
necessarily require documentary evidence. (See In re Marriage of
Ficke (2013) 217 Cal.App.4th 10, 25-27 [tracing did not require
documentary evidence where the husband testified the bank
account was a separate, non-commingled account]; In re Marriage
of Cochran, supra, 87 Cal.App.4th at p. 1059 [“While ordinarily,
in order to receive reimbursement, husband would be required to
provide detailed records showing that separate property was used
15
[citations], in the instant case this was not necessary.”]; see also
In re Marriage of Bonvino (2015) 241 Cal.App.4th 1411, 1423
[“[v]irtually any credible evidence may be used to overcome the
general community property presumption”].) We agree with
these courts that tracing separate funds without documentary
evidence is generally exceedingly difficult, and that as a practical
matter documents may be “required,” but tracing may be proved
by testimony alone.
Zesati contends the family court erroneously denied his
reimbursement claim based solely on his failure to introduce
documentary evidence to trace his separate property interest in
the home purchase and CIT bank account funds. We disagree.
The court explained its (correct) understanding that proving a
tracing claim without documentary evidence is difficult, but it did
not state unequivocally that this approach was prohibited. For
example, the court’s order repeatedly stated that documentary
evidence was necessary “in most cases” and that proving a
reimbursement claim without documentary evidence was
“generally” not supported by the law. But the court also stated
that it “retains the authority to consider any credible evidence
and to evaluate alternative tracing methods.” Further, the court
recounted the testimony provided at trial, including Zesati’s
testimony he had saved thousands of dollars prior to the
marriage and had used his separate funds to make investments
during the marriage.
Although the family court found that in the absence of
corroborating documents Zesati had not met his burden to prove
his use of separate property to purchase the home or to trace his
separate property within the CIT bank account, this does not
mean the court relied solely on the lack of documentary proof.
16
The court was not required to believe Zesati’s testimony, and it
was free to give the testimony whatever weight it deemed
appropriate under the circumstances.5 (See In re Marriage of
Brewster & Clevenger (2020) 45 Cal.App.5th 481, 500 [“the trial
court is the sole judge of the credibility and weight of the
evidence”].)
C. Zesati Has Not Shown Error in the Family Court’s Other
Property Distributions
Zesati contends the family court erred in failing to divide
the contents of a Union Bank account between him and Diaz and
instead awarding the entirety of the account to Diaz. However,
prior to trial the parties entered a stipulation concerning certain
assets, and the stipulation awarded the entirety of the Union
Bank account to Diaz. Accordingly, there was no error.
Zesati also argues the family court failed to reallocate
certain pretrial disbursements of community funds. In
November 2020 the court authorized use of community funds to
pay for the parties’ living expenses. The court awarded $30,000
in community funds to Diaz and $15,000 to Zesati. On appeal,
Zesati argues the court erred by failing to offset Diaz’s award of
community property with the $15,000 she received from
5 Zesati does not argue on appeal that his evidence compelled
a finding in his favor as a matter of law (or that the family court’s
findings were not supported by substantial evidence).
Accordingly, he has forfeited those arguments. (See Lee v. Kim
(2019) 41 Cal.App.5th 705, 721 [“‘“When an appellant fails to
raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority, we treat the point as
[forfeited].”’”].)
17
community funds in 2020 for living expenses. However, Zesati
has not cited any authority for the proposition that living
expenses paid from community property prior to entry of a
judgment must be reimbursed. In fact, section 2040,
subdivision (a)(2)(A), provides that the parties are entitled to use
community property “in the usual course of business or for the
necessities of life.” Again, Zesati has not shown error.
D. The Family Court’s Sanctions Awards
1. Governing law and standard of review
Section 271 provides with respect to family law matters,
“Notwithstanding any other provision of this code, the court may
base an award of attorney’s fees and costs on the extent to which
the conduct of each party or attorney furthers or 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. An award of
attorney’s fees and costs pursuant to this section is in the nature
of a sanction.” (§ 271, subd. (a); accord, Featherstone v. Martinez
(2022) 86 Cal.App.5th 775, 783 [“‘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.’”].)
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.
[Citations.] Section 271 ‘“authorizes sanctions to advance the
policy of promoting settlement of litigation and encouraging
cooperation of the litigants” and “does not require any actual
18
injury.” [Citation.] Litigants who flout that policy by engaging in
conduct that increases litigation costs are subject to imposition of
attorney fees and costs as a section 271 sanction.’ [Citation.]
Some courts have said the section authorizes attorney’s fees and
costs as a penalty for obstreperous conduct.” (In re Marriage of
Davenport (2011) 194 Cal.App.4th 1507, 1524.)
We generally review an award of sanctions under
section 271 for an abuse of discretion. (Featherstone v. Martinez,
supra, 86 Cal.App.5th at pp. 783-784; In re Marriage of Pearson
(2018) 21 Cal.App.5th 218, 233.) To the extent we are called
upon to interpret section 271, including its notice and hearing
requirements, our review is de novo. (In re Marriage of Perow &
Uzelac (2019) 31 Cal.App.5th 984, 989; Sagonowsky v. Kekoa
(2016) 6 Cal.App.5th 1142, 1152.)
2. The family court abused its discretion in awarding
sanctions based on Zesati’s failure to present
documentary evidence at trial
As discussed, the family court awarded Diaz $27,000 in
sanctions based on Zesati’s refusal to settle his reimbursement
claims despite having no documentary evidence. However, the
fact that Zesati did not prevail on his claims does not mean his
position was “so devoid of merit that no reasonable person would
have pursued it.” (In re Marriage of Abrams (2003)
105 Cal.App.4th 979, 991 [trial court abused its discretion by
imposing section 271 sanctions because parent “‘unreasonably
pursued an unmeritorious legal position’”], disapproved on
another ground by In re Marriage of LaMusga (2004) 32 Cal.4th
1072, 1097.) Zesati was entitled to present his testimony at trial
in an attempt to prove his separate property claims. Section 271
19
is not intended to shift the cost of litigation to a party simply
because the party was unsuccessful. Where, as here, the party
takes a reasonable but ultimately unsuccessful position,
section 271 sanctions are not warranted. Accordingly, the family
court abused its discretion in awarding sanctions against Zesati
under section 271 for proceeding at trial without documentary
evidence.
3. The family court did not err in imposing sanctions for
Zesati’s emails to Diaz’s counsel
i. Additional background
As discussed, on June 3, 2024 Diaz filed a request for order
seeking sanctions under section 271 based on Zesati’s filing of a
purportedly frivolous request for change in custody of the couple’s
children. On August 5 Diaz filed a request for order seeking to
have Zesati declared a vexatious litigant. In her declaration in
support of the vexatious litigant request, Diaz’s attorney, Serine
Tsuda, stated that in September 2022 Zesati sent her “an email
containing veiled threats,” “made it known that he knew my
home address,” and listed the name of Tsuda’s husband and her
direct telephone number. Tsuda stated the overall tone and
context of the email was threatening, referencing Zesati’s “life in
the ‘GHETTO housing projects’ and his ‘very scary experiences’
there.” Tsuda also recounted that when the family court asked
Zesati about this email during a hearing in June 2023, Zesati
invoked his Fifth Amendment privilege against self-
incrimination. Zesati again included Tsuda’s home address, her
husband’s name, and her husband’s business address in
July 2024 emails to the Internal Revenue Service (IRS) and
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Franchise Tax Board alleging misconduct by Tsuda. Tsuda was
copied on the emails.
The family court set a hearing on both requests for
September 20, 2024. During the hearing, the court stated at the
outset that it did not believe the standard for declaring a person
a vexatious litigant was met as to Zesati. However, the court
said it was “concerned” about the September 2022 email Zesati
sent to Tsuda listing her home address. The court stated to
Tsuda, “To my mind, there’s no other purpose . . . to add your
husband’s name and your address other than to intimidate
you . . . [T]o me, of all of the activity from [Zesati], that’s the only
activity that I think is actionable.” The court later explained that
it was “looking at” sanctions under section 271 to address the
emails.
The family court then addressed Zesati, who represented
himself at the hearing, and invited him to “comment or give
context . . . as to why you would send an email to counsel with
her home address and her husband’s name for any purpose other
than trying to intimidate her.” Zesati stated that Tsuda was the
agent for service of process for her husband’s business, which was
public record. He said he included the information in his emails
to the IRS and Franchise Tax Board because “she should be
investigated to see what other illicit activity she’s involved with.
Because I can almost guarantee that she’s involved in other
illegal activity.” The court responded, “So, I’m listening,
and . . . your testimony is . . . actually just increasing my belief
that you are trying to intimidate her.” The court explained that
it appeared the only reason Zesati included the personal
information in the emails was “to let [Tsuda] know, ‘I’ve
researched public records. I’ve found out where you live. I’ve
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found out your husband’s name. I’ve found out where your
husband works. I want you to know that I have this information
on you. . . . That’s the way I view it. So I’ll give you another
opportunity to tell me why that view is wrong.” Zesati failed to
explain why he had included the personal information in the
emails, instead responding that he believed he was being
mistreated and would not get a fair hearing. He added that he
intended to place Tsuda and Diaz “under citizen’s arrest for
perjury.”
The family court interjected, “I gave him an opportunity to
dissuade [me from] what I believe to be a threat. He’s enforced it.
So it was a threat.” The court then asked Tsuda what she
believed would be an appropriate sanction. Tsuda requested
approximately $20,000 in section 271 sanctions to cover Diaz’s
postjudgment attorneys’ fees. The court gave Zesati an
opportunity to address the amount of sanctions, to which he
responded, “I should be sanctioned absolutely zero . . . dollars for
this,” reiterating why he should not be sanctioned. After
considering Zesati’s ability to pay, the court awarded $9,500 in
sanctions against Zesati.6
6 Diaz requests we take judicial notice of documents filed in a
separate action in which she sought a civil harassment
restraining order against Zesati, which she asserts included
evidence regarding Zesati’s behavior immediately after the
September 20, 2024 hearing. We deny the request because the
documents are not relevant to our resolution of this appeal.
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ii. The family court provided sufficient notice prior to
imposing sanctions
Zesati contends the imposition of sanctions was improper
because he did not receive advance notice of the specific grounds
and conduct on which sanctions would be based. In particular, he
argues that because the intimidating emails were referenced in
the vexatious litigant motion, but not the motion for sanctions, he
was not aware he faced sanctions based on the intimidating
emails. Zesati had sufficient notice.
Section 271, subdivision (b), requires that sanctions “shall
be imposed only after notice by the requesting party or the court
to the party against whom the sanction is proposed and
opportunity for that party to be heard is provided by the court.”
However, section 271 does not specify the type of notice or how
far in advance notice must be given. Zesati relies on In re
Marriage of Quinlan (1989) 209 Cal.App.3d 1417 for the
proposition that sanctions may not be based on conduct for which
the sanctioned party had no advance notice. Quinlan does not
support his position. In that case, the husband filed a written
request for sanctions against the wife’s attorney pursuant to
Code of Civil Procedure section 128.5, which, like Family Code
section 271, requires notice of the alleged grounds for sanctions
and an opportunity to be heard. (Quinlan, at pp. 1420-1421.)
The family court awarded sanctions against the wife in
connection with the husband’s oral motion for sanctions based on
the wife’s attorney’s ““‘unorthodox and wholly improper conduct’”
at the hearing, not for the grounds articulated in the husband’s
written motion. (Id. at p. 1421.) The court’s order imposing
sanctions recited that the sanctions were imposed for the wife’s
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delay with respect to her motion on visitation and her filing of an
untimely peremptory challenge. (Ibid.)
The Court of Appeal reversed the sanctions order,
concluding the request for sanctions made at the hearing “was
not specific enough to give counsel a clue as to how to respond,”
and further, the grounds cited in the family court’s written order
“were not asserted as a basis for sanctions by either [the
husband] or the judge, at any time before rendition of the
sanctions order. . . . [C]onsequently, [counsel] had no reasonable
opportunity to respond since he could not have known of the need
to respond as to those grounds.” (Quinlan, supra, 209 Cal.App.3d
at p. 1421.) However, the court clarified that when sanctionable
conduct occurs or comes to light during a hearing, a trial court is
not required to schedule a separate hearing for a later date:
“[S]uch a requirement would inhibit the imposition of sanctions
by busy judges on a motion calendar for whom a separate hearing
might not be worth the extra trouble. Additionally, requiring a
separate hearing would increase the amount of the sanctions that
are awarded to compensate the opposing side for its attorney
fees.” (Id. at p. 1422.) Accordingly, “if the court gives clear
warning from the bench of the anticipated grounds for sanctions,
or if the moving party does so, and counsel is given an adequate
opportunity to present an oral response, due process concerns are
satisfied.” (Id. at p. 1423.)
We agree with the reasoning in Quinlan that the notice
requirements of section 271 can be satisfied during a hearing so
long as the sanctioned party is told the specific grounds of the
potential sanctions and is given an opportunity to respond. That
procedure was followed in this case. The family court explicitly
and repeatedly told Zesati that it was considering sanctions
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based on the three emails in which Zesati included counsel’s
personal information. The court also repeatedly gave Zesati an
opportunity to respond, requesting that Zesati explain why he
included counsel’s personal information in the emails. Zesati
never stated that he needed additional time to respond, nor did
he argue that the notice was insufficient. Zesati therefore had
sufficient notice of the grounds for sanctions and was provided a
meaningful opportunity to respond.
DISPOSITION
The $27,000 sanctions award in the February 7, 2024
judgment against Zesati is reversed. The judgment is otherwise
affirmed. The October 17, 2024 sanctions order is affirmed. The
parties are to bear their own costs on appeal.
FEUER, J.
We concur:
MARTINEZ, P. J.
SEGAL, J.
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