Filed 7/15/26 Marriage of Ortiz and Rivera CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of ELVIS CINTHIA
PERSHIA OROZCO ORTIZ and
SERGIO BARAJAS RIVERA.
ELVIS CINTHIA PERSHIA
OROZCO ORTIZ, G064694
Appellant, (Super. Ct. No. 19D004973)
v. OPINION
SERGIO BARAJAS RIVERA,
Respondent.
Appeal from an order of the Superior Court of Orange County,
Thomas J. Lo, Judge. Reversed.
Affordable Divorce & Family Law and Julia L. Miranda for
Appellant.
No appearance for Respondent.
* * *
Appellant Elvis Cinthia Pershia Orozco Ortiz (Cinthia) and
respondent Sergio Barajas Rivera (Sergio) divorced in 2019.1 Years after their
divorce, they were embroiled in a dispute concerning the sale of their former
marital home. The family court ordered Cinthia to pay Sergio $11,000 in
sanctions under Family Code section 271,2 which allows sanctions “for
uncooperative conduct that frustrates settlement and increases litigation
costs.” (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 290.) Cinthia
argues this sanction award was an abuse of discretion. We agree. Based on
our review of the entire record, Cinthia did not engage in any uncooperative
or unreasonable behavior that warranted sanctions under section 271. Thus,
the court lacked authority to award sanctions as a matter of law, and the
order awarding fees is reversed.
FACTS AND PROCEDURAL HISTORY
I.
THE JUDGMENT
Cinthia and Sergio filed a stipulated judgment in July 2019,
which terminated their marriage (the judgment). The parties had lived in a
home (the home) that Sergio purchased prior to their marriage. Only Sergio’s
name was on the home’s title. However, the judgment stated that Cinthia
and Sergio jointly owned the home, and they would “continue to own the
home jointly” after their divorce.
The judgment required Sergio to move out of the home and
allowed Cinthia to continue living there for up to six years after the divorce,
1 Per custom in family law cases, we refer to the parties by their first
names. (In re Marriage of Gray (2007) 155 Cal.App.4th 504, 508, fn. 1.)
2 Undesignated statutory references are to the Family Code.
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i.e., until July 2025. During this six-year period, the parties would equally
split the home’s mortgage payments. After that period expired, the parties
would sell the home and equally split the proceeds. The judgment contained a
written modification requirement, which stated its terms could “only be
amended or modified or deemed amended or modified by an agreement in
writing duly signed by the parties or by any court of competent jurisdiction.”
Contrary to the judgment’s terms, Sergio refused to move out of
the home after the parties’ divorce. The record indicates that Cinthia asked
him to move out many times, but he did not leave. When the COVID-19
pandemic happened, Cinthia lost her job and allowed Sergio to stay because
“it was a tough situation for everybody.” Once COVID-19 restrictions
loosened and Cinthia returned to work, Sergio made excuses and said he
could not move because he had no place to go.
II.
LITIGATION BETWEEN THE PARTIES
A. The Restraining Order
On November 7, 2023, Cinthia filed a self-represented ex parte
request for a domestic violence restraining order against Sergio (the
restraining order petition). Cinthia claimed that Sergio had emotionally
abused her by attempting to sell the home in violation of the judgment.
Cinthia confronted him about the home’s sale, and Sergio allegedly said that
she “should have thought about it before [she] decided to end [their]
marriage.” The petition also alleged that Sergio “use[d] a lot of intimidation
and ha[d] used the house as a way to keep [the parties] together.”
The family court denied the ex parte request and set a hearing on
the restraining order petition for November 27, 2023. Both parties were self-
represented at the hearing. There were issues finding an interpreter, so the
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court suggested continuing the hearing to February 19, 2024. But Cinthia
stated that Sergio refused to leave the house and had started “stalking [her]”
when she started dating again. She also explained that “[h]e comes to my
room whenever he wants to. And then at night he likes to . . . watch me while
I’m sleeping. So I just don’t feel safe.” Based on Cinthia’s representations, the
court continued the hearing to the next day.
At the November 28 hearing, Cinthia testified that during their
divorce, Sergio had agreed to add her name to the home’s title. He never did
so, but “made [her] believe that [she] was on the title.” Sergio felt that he
owned the home and that she “ha[d] no right whatsoever when it [came] to
any involvement.”
Sergio testified that finances were difficult, and he was unable to
pay his share of the home’s mortgage. He admitted that he was selling the
home and that it was currently in escrow. But he claimed the parties had
verbally agreed to sell it. Cinthia denied any such agreement and accused
Sergio of bringing realtors to the home while she was out with their son. The
record contains no indication that the parties entered a written agreement for
the early sale of the home, which would ostensibly be required by the
judgment’s written modification requirement.
The family court was sympathetic to Cinthia, but it explained
that Sergio’s action did “not rise to the level of abuse that would make the
Court issue any emergency orders.” However, the court explained “[t]hat
could change if you present more evidence at another hearing.” The court
then set another hearing on the restraining order petition for February 9,
2024, to allow the parties to present more evidence.
The family court also explained that there were other methods
Cinthia could use to address Sergio’s sale of the home, but it could not give
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her legal advice. It also warned Sergio that “[i]f you are doing things behind
her back, that’s not going to be good. The Court can make some orders if the
Court finds that; that you forfeit all your money to that house and give it to
her. That’s an option. That’s called breach of fiduciary duty.”
B. Ex Parte Motion to Stop the Home’s Sale
On December 5, 2023, Cinthia filed a self-represented ex parte
motion to stop the sale of the home (the stop the sale motion). The court
denied the motion pending a hearing, which it set for January 5, 2024 (the
January 5 hearing). Both parties hired counsel prior to the January 5
hearing. Cinthia retained Bahran Madaen, and Sergio retained William
Tanner.
At the January 5 hearing, Tanner disclosed that the home had
been sold on November 14, 2023, and the deed recorded on December 4, 2023.
Half of those proceeds were put into a check for Sergio, and the other half
were put into a check for Cinthia. The court ordered the sale proceeds be
placed into a trust account until released by the court.
The parties discussed the upcoming hearing on the restraining
order petition. Tanner asked whether that hearing was necessary since the
house had already been sold. Madaen stated that he would discuss the issue
with Cinthia.
The court continued the hearings on the stop the sale motion and
the restraining order petition to March 22, 2024. It also set a status
conference for the same date “to see where we are on the other issues in this
case.”
C. The Joinder Motion and the First Sanctions Request
On January 16, 2024, Cinthia filed a complaint for joinder and a
motion for joinder (collectively, the joinder motion), which sought to join the
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home’s buyers to this lawsuit and quiet title against them. Sergio opposed the
joinder motion and requested an order for Cinthia to pay him “attorney fees
and costs for this action.” A hearing on the joinder motion was scheduled for
March 22, 2024, the same date as the hearing on the stop the sale motion and
the restraining order petition.
On March 20, 2024, Cinthia requested an order for damages and
sanctions from Sergio based on alleged breaches of fiduciary duty (the first
sanctions request). A hearing on the first sanctions request was set for June
21, 2024.
D. The Hearing on March 22, 2024
There were four matters on calendar for March 22, 2024 (the
March 22 hearing): (1) the stop the sale motion, (2) the restraining order
petition, (3) the joinder motion, and (4) a status conference
At the hearing, Madaen informed the court that Cinthia was
taking off calendar the restraining order petition and the joinder motion. As
to the restraining order petition, Madaen stated that he had informed Tanner
two or three weeks prior that Cinthia would not pursue it. Madaen had also
e-mailed Tanner the day before the hearing and informed him that the
restraining order petition was being taken off calendar. Madaen did not state
whether he had told Tanner that the joinder motion would be taken off
calendar prior to the March 22 hearing.
As to the stop the sale motion, Madaen was initially “not sure”
whether to take it off calendar. He explained to the court that he was “not
familiar with that motion” because he did not represent Cinthia when it was
filed.
Tanner then requested that the court vacate its prior order
placing the sale proceeds into a trust account, so Sergio could receive his
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share. Madaen objected because the first sanctions request, which concerned
the sale proceeds, was on calendar for June 21, 2024. Tanner argued that the
first sanctions request was not pending because he had not been served with
it. While Tanner admitted receiving the first sanctions request, he argued
that “it ha[d] no date or time on it, so [he] had not been served with” it.
Tanner also requested that the family court impose sanctions and
fees against Cinthia for the “three matters that they’re taking off calendar,”
even though the stop the sale motion had not yet been taken off calendar.
Madaen objected. He argued that he had informed Tanner “about two, three
weeks ago” that the restraining order petition was being taken off calendar.
He likewise argued that sanctions were improper because “[w]e didn’t do
anything wrong. It is [Sergio] that create[d] all these problems.” However,
Madaen then agreed to take the stop the sale motion off calendar.
The family court confirmed with Madaen that the three motions
and requests set for hearing that day were being taken off calendar, which
Madaen confirmed. Tanner then renewed his request that the court vacate its
order placing the sale proceeds in trust, so Sergio could use his share to pay
Tanner or any attorney he retained in the future. Madaen objected because
the first sanctions request was still pending. However, the court noted that
Tanner had not been served with the first sanctions request, so it granted the
request to release the sale proceeds.
In April 2024, Cinthia filed a separate civil complaint against
Sergio, the buyers, and others involved in the sale of the house for breach of
contract, conversion, fraud, negligence, quiet title, cancellation of
instruments, declaratory relief, slander of title, and unjust enrichment (the
civil action). Cinthia was represented by Katje Law Group, APC, in the civil
action.
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E. The Second Sanctions Request
On June 5, 2024, Sergio filed an opposition to the first sanctions
request and requested $11,000 in attorney fees for “all the dismissed filings.”
Sergio did not provide any legal authority for this request. Nor did he explain
how this fee amount was calculated.
A few days later, Cinthia filed a substitution of counsel (the
substitution), which substituted in attorney Julia Miranda to replace
Madaen. That same day, Miranda filed another request for sanctions,
arguing that Sergio had breached his fiduciary duties to Cinthia (the second
sanctions request). A hearing on the second sanctions request was scheduled
for July 26, 2024.
Miranda filed a declaration on June 17, 2024 (Miranda’s
declaration), requesting that the first sanctions request be taken off calendar.
Miranda’s declaration stated that she and Madaen had signed the
substitution on April 18, 2024. Though the substitution’s filing was rejected
twice by the court, she served Tanner with it on May 14, 2024.
After receiving the substitution, Tanner requested via e-mail that
Miranda serve him with the first sanctions request. Miranda replied on May
20, and informed Tanner that she was revising the first sanctions request
and would file a new one (i.e., the second sanctions request). She explained,
“[w]ith respect to [the first sanctions request] written by . . . Mr. Madaen,
English is his second language and there are some portions that were hard to
read, so I am amending the pleading and refiling it. As soon as I get it back
from the court, I will serve you with the amended pleading.” Tanner
responded the same day with, “‘Thank you.’”
Miranda’s declaration also explained that she e-mailed Tanner
after he filed Sergio’s response to the first sanctions request on June 5. Her e-
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mail objected to the filing and questioned why Sergio submitted a response
when (1) Tanner had previously denied being served with the first sanctions
request, and (2) she had told him she would amend it and file the second
sanctions request. She also informed Tanner that she would appear remotely
on June 21, 2024, to explain the situation to the court.
Tanner filed his own declaration in response to Miranda’s
declaration. He admitted that “Ms. Miranda emailed me in May and told me
that she would amend and refile [the first sanctions request].” But he
asserted that filing a response to the first sanctions request was necessary
because the statutory deadline to respond was running.
The first sanctions request was taken off calendar at the June 21,
2024 hearing. The family court ordered Sergio to file a declaration in support
of his request for attorney fees and allowed Cinthia time to respond.
F. The Attorney Fee Filings
Sergio submitted a declaration from Tanner stating the $11,000
attorney fee request was made “under all applicable laws, codes, and
entitlements.” The filing contained an invoice totaling $14,600.10, with
billing entries for various tasks.
Though Sergio had not provided any legal authority for his
attorney fee request, Cinthia presumed it was brought under section 271. She
argued that she had been deprived of proper notice and an opportunity to be
heard under the statute. She also claimed there was no factual or legal basis
for fees under section 271.
G. The Court’s Ruling
The family court awarded Sergio $11,000 in attorney fees and
costs under section 271 (the fee award). It found the fee award was
warranted because Cinthia had filed four motions and requests—the stop the
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sale motion, the restraining order petition, the joinder motion, and the first
sanctions request—and then taken them “off calendar at the time of [their]
scheduled hearings.” The court explained that this “frustrate[d] the policy of
the law which includes, among other things, the reduction of the cost of
litigation, the encouragement of cooperation between the parties and
attorneys and the taking of an unreasonable position in litigation.”
DISCUSSION
I.
APPLICABLE LAW
“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, supra, 193 Cal.App.4th at p. 290.)
“[S]anctions under section 271 are justified when a party has unreasonably
increased the cost of litigation.”3 (In re Marriage of Corona (2009) 172
Cal.App.4th 1205, 1227.) “‘[T]he court must examine the entire record in
determining whether the ultimate sanction should be imposed.’” (In re
Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1316.)
Section 271 sanctions are awarded in cases that involve
“obstreperous conduct like . . . filing an unnecessary motion for
reconsideration without presenting any new or different facts [citation],
pursuing a contention that was precluded by res judicata [citation], litigating
3 “[T]he court may base an award of attorney’s fees and costs on the
extent to which any 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).)
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a claim of spousal abuse in bad faith [citation], and engaging in a series of
stratagems to avoid an initial failure to contest a prior agreement [citations].”
(In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 991, overruled on
other grounds by In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097.)
Other examples include unreasonable conduct that “‘cause[s] the costs of the
litigation to greatly increase’” and “making a one-sided, overreaching
demand.” (In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 6.)
“An order imposing sanctions under section 271 is generally
reviewed for abuse of discretion. [Citation.] However, when a party contends
that the trial court did not have jurisdiction or authority to make a
challenged order, we review the claim de novo.” (In re Marriage of Blake &
Langer (2022) 85 Cal.App.5th 300, 308.) For example, an award of fees that
“[l]ack[s] the predicate of a showing of frustration . . . must be reversed.” (In
re Marriage of Schulze (1997) 60 Cal.App.4th 519, 531.)
II.
THE SANCTIONS
Cinthia argues the fee award was an abuse of the family court’s
discretion. We agree. The fee award was based on Cinthia taking the
following motions and requests off calendar the day of their respective
hearings: (1) the stop the sale motion, (2) the restraining order petition,
(3) the joinder motion, and (4) the first sanctions request. A review of the full
record shows that Cinthia’s alleged failure to take these motions and
requests off calendar sooner was neither uncooperative nor unreasonable. (In
re Marriage of Fong, supra, 193 Cal.App.4th at p. 290.) Thus, the court lacked
authority to award section 271 sanctions as a matter of law. (In re Marriage
of Blake & Langer, supra, 85 Cal.App.5th at p. 308.)
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A. The First Sanctions Request and the Restraining Order Petition
As for the first sanctions request, there was no uncooperative or
unreasonable conduct by Cinthia or her counsel to warrant section 271
sanctions. After Miranda substituted into the case, she informed Tanner that
she was going to amend and refile the first sanctions request two weeks
before Tanner filed Sergio’s response to it. There is no dispute Tanner
received this e-mail. If he was unsure of the first sanctions request’s status as
the response deadline approached, Tanner could have attempted to contact
Miranda to discuss the issue. He did not do so. (See In re Marriage of Hoch
(2026) 119 Cal.App.5th 80, 95–96 [reversing section 271 sanctions where
party awarded sanctions could have avoided incurring requested legal fees].)
Similarly, as to the restraining order petition, it is undisputed
that Cinthia’s counsel at the time, Madaen, told Tanner at least two weeks
before the March 22 hearing that Cinthia would not pursue it. He also e-
mailed Tanner the day before the hearing to reiterate that it was being taken
off calendar. Thus, there was no reason for Tanner to expect to litigate this
motion at the March 22 hearing. Madaen’s conduct cannot be construed as
uncooperative or unreasonable and did not warrant sanctions under section
271. To the extent Tanner sought further assurances that the restraining
order petition would not be heard, he could have contacted Madaen with his
concerns.
B. The Stop the Sale Motion
When considering the entire record, the stop the sale motion was
not taken off calendar sooner due to poor communication from both sides.
There is no dispute that the stop the sale motion was colorable
when filed. But it was mooted by Sergio’s sale of the home in apparent
violation of the judgment. Cinthia and Madaen could have been more
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proactive in taking the stop the sale motion off calendar. But since it was
Sergio’s allegedly improper conduct that mooted the stop the sale motion, he
shared at least some responsibility in inquiring whether Cinthia was still
proceeding with the motion prior to the March 22 hearing. Nothing in the
record shows that Tanner attempted to contact Madaen about the stop the
sale motion prior to its hearing.
Given the above context, Cinthia and Madaen’s conduct was not
sufficiently uncooperative or unreasonable to be sanctionable under section
271 as a matter of law. (See In re Marriage of Abrams, supra, 105
Cal.App.4th at p. 991; In re Marriage of Freeman, supra, 132 Cal.App.4th at
p. 6; cf. Featherstone v. Martinez (2022) 86 Cal.App.5th 775, 779–780, 785–
786 [party’s filing of a proposed judgment with errors “that did not correctly
reflect the orders the court had made” did not merit sanctions under section
271].)
C. The Joinder Motion
Cinthia and Madaen’s failure to take the joinder motion off
calendar sooner cannot be construed as uncooperative or unreasonable when
viewing the entire record.
Cinthia initiated this case on November 7, 2023, to prevent the
sale of the home. Tanner then disclosed at the January 5 hearing that the
home had already been sold. Cinthia immediately attempted to address the
allegedly improper sale by filing the joinder motion on January 16, 2024,
which sought to quiet title against the buyers. She then took the joinder
motion off calendar at the March 22 hearing and pursued her quiet title claim
against the buyers by having new counsel file the civil action on April 23,
2024.
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Given the rapid pace at which this case unfolded, Cinthia’s
purported delay in taking the joinder motion off calendar was not
unreasonable. The above facts show a timely effort to develop a new litigation
strategy and retain new counsel to handle her civil claims after Sergio
allegedly sold the home in violation of the judgment. Nothing in the record
indicates that Cinthia waited to take the joinder motion off calendar due to
any gamesmanship or desire to delay. Accordingly, her failure to take the
joinder motion off calendar prior to its hearing date does not rise to the level
of conduct that other cases have found warranted section 271 sanctions. (See
In re Marriage of Abrams, supra, 105 Cal.App.4th at p. 991; In re Marriage of
Freeman, supra, 132 Cal.App.4th at p. 6.)
DISPOSITION
The family court’s fee award order is reversed. Cinthia is entitled
to her costs on appeal.
MOORE, ACTING P. J.
WE CONCUR:
DELANEY, J.
GOODING, J.
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