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Date: 02-04-2019
Case Style: Darab N. v. Maya Olivera
Case Number: B282972
Judge: Chaney, Acting P.J.
Court: California Court of Appeals Second Appellate District, Division One on appeal from the Superior Court, County of Los Angeles
Plaintiff's Attorney: Jackie A. Abboud
Defendant's Attorney: Peter A. Lauzon, and Nathalie E. Amir
Description:
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In August 2015, Maya gave birth to her and Cody’s
daughter, N.N.
2 When she was born, N. had heroin in her
system, and the Los Angeles County Department of Children and
Family Services (DCFS) detained her.
The DCFS proceeding was eventually dismissed. But in
October 2016, Maya relapsed and checked into a rehabilitation
and detox center. Maya completed her treatment on October 28,
2016, but was smoking heroin in N.’s presence the next day.
Cody filed a petition to establish parental relationship on
November 16, 2016, requesting sole legal and physical custody of
N. The petition requested that Maya have monitored visitation
and that she submit to drug and alcohol testing. Cody requested
1 We refer to the parties by their first names for ease of
reading.
2 Cody and Maya were never married. The couple signed a
“Declaration of Domestic Partnership” for purposes of health
insurance coverage on a form with a San Manuel Band of Mission
Indians header. The form explains that the “domestic
partnership shall be terminated if,” among other potentially
terminating events, the parties “no longer share a common
residence.” Presumably, then, when Cody and Maya no longer
shared a common residence, their San Manuel Band of Mission
Indians domestic partnership agreement terminated.
3
that the trial court enter orders on an ex parte basis; Maya
represented herself at the hearing. The trial court awarded
temporary sole legal and physical custody to Cody, ordered Maya
to have monitored visitation in her home three times a week for
four hours each visit, and ordered Maya to respond to the petition
no later than December 1, 2016.
On November 30, 2016, Jackie Abboud substituted in as
counsel for Maya, replacing Maya’s previous counsel. On
December 2, Cody’s attorney spoke with Abboud on the telephone
and requested that Abboud file a response to Cody’s petition.
The parties entered into a stipulation and order on
December 20, 2016, that modified the trial court’s November 22
order entered on Cody’s ex parte application. The December 20
order left sole legal and physical custody with Cody, kept Maya’s
visitation the same, but increased her drug and alcohol
monitoring obligations. Cody also agreed to pay Maya an
advance on child support and to pay $3,000 per month in child
support from December 1, 2016 to May 31, 2017.
Cody’s counsel e-mailed Abboud on January 5, 2017 to
request that Abboud file a response to Cody’s petition. On
January 6, 2017, Cody’s counsel again requested by telephone
that Abboud file a response to the petition. On January 11, 2017,
Cody filed a request to enter Maya’s default; the trial court
entered Maya’s default the same day.
Abboud wrote to Cody’s counsel on January 20, 2017,
requesting that Cody’s counsel sign a stipulation and proposed
order to set aside the default. Abboud wrote: “As Maya had two
attorneys before, I was not aware that no [r]esponse was filed.”
Cody’s counsel did not stipulate to set aside the default, and on
February 15, 2017, Abboud wrote to Cody’s counsel that she
would file an ex parte application on February 21, 2017 asking
the trial court to set aside the default and sanction Cody’s
counsel under Family Code section 271. In her declaration in
support of the ex parte application, Abboud wrote: “As [Abboud]
substituted into the case after two other attorneys had been
involved in the case, [Abboud] believed that a Response to
[Cody’s] Petition had been filed.”
At the February 21, 2017 hearing, the trial court denied the
ex parte application to set aside the default and denied the
request for sanctions without prejudice to the request being
refiled for hearing on proper notice. The trial court’s order
contained the following handwritten notation: “Denied without
prejudice. Parties to file a noticed motion. The parties are to
comply with Judge Nelson’s 11/22/16 orders that includes that
neither party is to be under the influence of drugs or alcohol in
the presence of the minor child.” Upon reviewing the trial court’s
handwritten notation, Abboud explained that she believed the
trial court had modified the custody and visitation orders back to
the November 22, 2016 orders (rather than the parties’ stipulated
December 20, 2016 orders). Cody’s counsel informed Abboud that
she would be staying in the courtroom to request clarification
from the trial court; Abboud left. Cody’s counsel never spoke to
the trial court, but through its clerk, the trial court issued an
order with additional language added to the handwritten
notation: “All terms and orders in 12/12/16 stipulation and order
and those in 11/22/16 order not modified by 12/12/16 order
remain in full effect.”3
3 “12/12/16 order” refers to the December 20, 2016
stipulation and order. The parties dated the stipulation
5
After the February 21, 2017 hearing (and before she was
aware the trial court had added language to its February 21,
2017 order), Abboud filed her motion to be heard on regular
notice, and added a request for payment of $50,000 from Cody to
Maya to finance her attorney fees. On the parties’ stipulation,
the trial court entered an order on February 22, 2017 modifying
the parties’ December 20, 2016 order to require Cody to pay two
of the child support payments outlined in the December 20, 2016
order directly to a rehabilitation facility in Mexico on Maya’s
behalf.
After receiving the trial court’s order with the additional
handwriting on it clarifying that the parties’ December 20, 2016
stipulation and order was also still in effect, Abboud notified
Cody’s counsel that she would be appearing on February 23, 2017
to apply ex parte for an order reconsidering the trial court’s
February 21, 2017 orders, for sanctions, and for an order
disqualifying the judicial officer who issued the February 21,
2017 orders. On February 23, the trial court granted the motion
for reconsideration and “re-adopt[ed] its modified February 21,
2017 Order in whole including the sentence the Court had added
to that order . . . .” The trial court denied the remainder of the ex
parte application.
As part of the parties’ stipulation, Maya was subject to
random drug tests and Soberlink alcohol monitoring at Cody’s
expense. Maya was noticed to appear for drug testing a total of
29 times. According to the manager of the drug testing facility
Maya was to test at, “She tested once, didn’t appear 23 times, and
failed to provide a specimen five times.” The one time she
December 12, 2016; the trial court signed the order on December
20, 2016.
6
tested—December 19, 2016—she tested positive for heroin and
morphine.
Overnight from March 2 to 3, 2017, while the trial court
proceedings were pending, Maya jumped the fence surrounding
Cody’s home, entered the home, and confronted a guest of Cody’s
asleep in one of the home’s guest rooms. Neither Cody nor N.
were at the home during the confrontation; Maya demanded to
know where they were and the guest refused to tell her. Maya
returned to Cody’s home the next morning. When Cody refused
to answer the door, Maya threw an empty bottle at the home four
times, making contact with a window twice, and breaking the
window. Based on Maya’s increasingly threatening behavior,
Cody filed a request for a domestic violence restraining order
(DVRO) on March 7, 2017.
On March 8, 2017, Maya served subpoenas on VISIONS
Adolescent Treatment Centers, which she contends treated Cody
for drug abuse when he was a teenager, and Cedars-Sinai
Medical Center, which she contends treated Cody on more than
one occasion for seizures that Maya contends “were most likely
caused by his excessive use of marijuana.” Cody moved on March
20, 2017 to quash both subpoenas and for an award of attorney
fees for having to bring the motions to quash. In response to the
motions to quash, Maya increased her request for attorney fees
from $50,000 to $100,000.
On April 11, 2017, the trial court entered a three-year
DVRO for Cody and N. against Maya.
On April 19, 2017, the trial court heard Maya’s motion to
set aside the default, Maya’s sanctions request in connection with
the motion to set aside the default, Cody’s motions to quash the
two subpoenas regarding his medical treatments, and Maya’s
7
additional requests regarding custody, visitation, child support,
and $100,000 in attorney fees. The trial court denied Maya’s
motion to set aside the default and the related request for
sanctions, granted Cody’s motions to quash the VISIONS and
Cedars-Sinai subpoenas, and denied Maya’s additional requests,
including her request that Cody be ordered to finance her
attorney fees.
On May 30, 2017, the trial court entered judgment based on
its prior orders. Maya filed a timely notice of appeal.
DISCUSSION
1. Request to Set Aside Default
Maya contends the trial court erred in refusing to set aside
the default entered after she failed to respond to Cody’s petition.
Maya argues that under Code of Civil Procedure section 473,
subdivision (b), the trial court was required to set aside the
default based on Abboud’s claim that she was unaware no
response to the petition had been filed. Maya argues that “a
court has no discretion to deny a request to set aside a default
where that request [under section 473, subdivision (b)] is
accompanied by a declaration from the attorney attesting to her
mistake.” Because Abboud attested to her mistake here, Maya
contends, the trial court’s denial of her request to set aside the
default was error.
Cody counters that the trial court determined that
Abboud’s declaration was not credible, and in fact found that
Abboud’s mistake was not the cause of the entry of default. Cody
argues that the statutory language allows the trial court to make
that finding and to thereupon deny relief under Code of Civil
Procedure section 473, subdivision (b). Substantial evidence
supports the trial court’s credibility determination and factual
8
finding, according to Cody. Consequently, Cody contends, the
trial court did not abuse its discretion when it denied Maya’s
request to set aside the entry of default.
Code of Civil Procedure section 473, subdivision (b)
provides in pertinent part: “Notwithstanding any other
requirements of this section, the court shall, whenever an
application for relief is made no more than six months after entry
of judgment, is in proper form, and is accompanied by an
attorney’s sworn affidavit attesting to his or her mistake,
inadvertence, surprise, or neglect, vacate any (1) resulting
default entered by the clerk against his or her client, and which
will result in entry of a default judgment, or (2) resulting default
judgment or dismissal entered against his or her client, unless
the court finds that the default or dismissal was not in fact
caused by the attorney’s mistake, inadvertence, surprise, or
neglect.” “The court’s determination of whether the default was
caused by the attorney’s mistake, inadvertence, surprise, or
neglect is in part a credibility determination. [Citation.]
‘Credibility is an issue for the fact finder . . . . we do not reweigh
evidence or reassess the credibility of witnesses.’ ” (Cowan v.
Krayzman (2011) 196 Cal.App.4th 907, 915.)
The trial court’s detailed order explains that counsel for
Cody requested—twice by telephone and once in writing—
Abboud to file a response to Cody’s petition, all before filing
Cody’s request for entry of default. The trial court’s order stated:
“Here the Court finds that Ms. Abboud’s mistaken belief [that a
response had been filed] in November, when she entered the case,
did not cause the default to be entered in January. The chain of
causation was broken when [Cody’s] counsel notified Ms. Abboud
that there was no Response and asked her to provide one. Only
9
when Ms. Abboud had been notified two or even three times and
still refused to file a Response did [Cody] proceed with a request
that default be entered.” Based on the evidence in the record, we
have no basis to disturb the trial court’s finding on appeal.
Code of Civil Procedure section 473, subdivision (b)’s
mandatory provision is only mandatory “unless the [trial] court
finds that the default or dismissal was not in fact caused by the
attorney’s mistake, inadvertence, surprise, or neglect.” Here, the
trial court found exactly that, and did not abuse its discretion in
so doing.
2. Cody’s Motions to Quash VISIONS and Cedars-Sinai
Subpoenas
Maya contends that the trial court erred when it granted
Cody’s motions to quash the VISIONS and Cedars-Sinai
subpoenas because, (a) Cody tendered the issue of his drug abuse
by filing his petition, and (b) Cody waived any privilege about his
medical treatments by discussing drug use and abuse and his
treatment with Maya.
Cody contends that he never tendered the issue of his own
drug use or abuse, and therefore has not implicated the tender
doctrine. He also argues that even if he disclosed the information
Maya claims he disclosed—the existence of privileged
communications (but not their substance) and a general
description of his treatment at VISIONS and Cedars-Sinai—that
disclosure is insufficient to waive either the physician-patient or
psychotherapist-patient privilege. We agree with Cody.
Koshman v. Superior Court (1980) 111 Cal.App.3d 294
(Koshman) establishes that the tender doctrine, codified at
Evidence Code sections 996 and 1016, “compels disclosure only in
cases in which the patient’s own action initiates the exposure.”
10
(Koshman, at p. 298.) The physician-patient and
psychotherapist-patient privileges apply in custody disputes
between parents. (See id. at p. 297.)
In Koshman, a custody dispute, father sought certain of
mother’s medical records, claiming that she had been
hospitalized for treatment for an overdose of narcotics “and thus
the records were vital to determine whether or not she was fit to
have custody of the children.” (Koshman, supra, 111 Cal.App.3d
at p. 296.) The Koshman court determined that it was father who
had tendered the issue implicating mother’s medical records, not
mother, and mother was therefore entitled to quash father’s
subpoena. There is no functional difference between Koshman
and this case; Maya attempted to tender Cody’s medical issues,
not Cody.
Neither do Maya’s assertions of the information Cody
shared with her about her treatment, or her accompaniment of
him to medical appointments that she does not identify constitute
a waiver of either the physician-patient or psychotherapistpatient
privileges. (See Roberts v. Superior Court (1973) 9 Cal.3d
330, 340.) “[T]he mere disclosure of the existence of the . . .
relationship [from which the privilege emanates] does not reveal
a significant part of the communication and thus does not
constitute a waiver. Similarly, we do not believe . . . [the]
disclosure of the purpose of . . . treatment waived the privilege.”
(Ibid.)
The trial court did not abuse its discretion by granting
Cody’s motions to quash.
3. Maya’s Request for $100,000 in Attorney Fees
Maya contends that the trial court erred when it denied her
request for an order requiring Cody to pay her $100,000 to
11
finance the litigation.4 Maya argues that Family Code section
7605 requires the trial court to do a needs-based assessment of
the parties’ relative abilities to finance the litigation and to base
its determination only on the parties’ relative ability to finance
the litigation and on no other factors. Here, Maya claims, the
trial court “assessed Maya’s request under the statute applicable
to a request for fees by a spouse in a dissolution proceeding.” The
trial court therefore erred because “this is not a case in which
Maya is seeking spousal support from Cody—and there is no
statute or case law that directs a court to limit relief under
section 7605 due to” a parent’s domestic abuse. We disagree with
Maya’s analysis.
In Kevin Q. v. Lauren W. (2011) 195 Cal.App.4th 633, we
concluded the trial court “did not err by taking into account
standards and circumstances pertinent under a [Family Code]
section 2032 comparative analysis. By doing so, the court was
able to perform a more thorough evaluation of the parties’
respective abilities to pay.” (Id. at p. 644.) Contrary to Maya’s
contentions here, Family Code section 7605 does not require the
trial court to simply mathematically determine which party has
access to more resources and then redistribute those resources.
Section 7605 specifically allows the trial court the discretion to
determine what is “reasonably necessary” under the facts and
circumstances before it “for the cost of maintaining or defending
the proceeding during the pendency of the proceeding.”
When considering a request for attorney fees, “the trial
court must determine what is just and reasonable under the
circumstances, taking into consideration the parties’ needs and
4 Maya’s request was initially for $50,000 in attorney fees.
In her reply papers, she doubled her request to $100,000.
12
ability to pay and the conduct of each party.” (In re Marriage of
Czapar (1991) 232 Cal.App.3d 1308, 1319, italics added.) “[T]he
proper legal standard for determining an attorney fee award
requires the trial court to determine how to apportion the cost of
the proceedings equitably between the parties under their
relative circumstances. [Citation.] In making this
determination, the trial court has broad discretion in ruling on a
motion for fees and costs; we will not reverse absent a showing
that no judge could reasonably have made the order, considering
all evidence viewed most favorably in support of the order.” (In
re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975
(Falcone); In re Marriage of Winternitz (2015) 235 Cal.App.4th
644, 657, (Winternitz).) A party’s “tactics are relevant to evaluate
the relative need-based fees between the parties and support the
trial court’s decision to deny such . . . .” (Falcone, at p. 977.)
The portion of the trial court’s order denying Maya’s
request for attorney fees states: “Respondent seeks an award of
attorney fees of at least $100,000 (she originally sought $50,000).
[Footnote.] Unfortunately, the papers do not clearly state how
much of the total is allocated to the DVRO proceedings, the nonDVRO
proceedings, and future proceedings. The emphasis in
Respondent’s papers is on [Cody]’s ability to pay the fees rather
than the purpose of the fees. The papers do state that, as of the
end of March 2017, [Maya] had incurred over $39,000 in
attorney’s fees on all matters.
“As for the fees that were incurred in connection with the
DVRO proceedings, in which [Maya] did not prevail and is now
restrained, Fam. Code §6344 authorizes an award of fees to the
prevailing party in such proceedings [citation], but no law has
been cited authorizing an award of fees to the losing, restrained
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party. The discussion in In re Marriage of Cauley (2006) 138
Cal.App.4th 1100 is instructive. There, despite provisions in the
judgment to the contrary, the court terminated support to an
abusive spouse on the grounds that the protected party should
not have to finance his own abuse. [Citation.] Given the
statutory provision authorizing prevailing party fees but not the
reverse, as well as the express requirement that domestic
violence be considered in any award of fees (Fam. Code §§2030,
2032, and 4320 [footnote]), the Court finds that an award of fees
to a restrained party for fees incurred in connection with that
domestic violence proceeding would be contrary to the purposes of
the Domestic Violence Protection Act. Respondent’s request for
fees incurred in connection with the DVRO proceedings is denied.
“As for fees incurred in connection with other issues—
[Maya]’s default, on her subpeonas which have been quashed,
and on custody, visitation and child support, which have been
denied—it is difficult to justify an award of fees in view of the
Court’s rulings on the merits of these issues. As set forth in Alan
S. v. Superior Court (2009) 172 Cal.App.4th 238, 251, [Maya] is
not entitled to fees simply because her income is less than
[Cody]’s. [Citation.] Deciding on a request for attorney’s fees and
costs requires the court to exercise its discretion based on a
consideration of all the relevant factors. Here the fees do not
appear to have been incurred on necessary issues or in a
reasonable manner and, in some instances, the fees were
incurred in a way that increased the fees for all parties.
Requiring the opposing party to pay Respondent’s fees under the
circumstances presented by this case is not appropriate and the
Court exercises its discretion to deny the request.
14
“As for the request for fees to be incurred in the future, all
significant issues have already been ruled upon and it is difficult
to see any future proceedings prior to the expiration of the
restraining order that would be reasonable and necessary and
that would bring total fees to $100,000. The Court finds that
[Maya]’s request for attorney’s fees for future non-DVRO matters
is not supported by the facts and circumstances and should be
denied.”
Our review of the record confirms the trial court’s
observation that there is no clear allocation of the fees requested
to either the DVRO proceedings, the non-DVRO proceedings, or
future proceedings. Abboud attached her bills to Maya as
evidence of attorney fees, but they offer no assistance in
determining how much of any bill can be attributed to any part of
the litigation.5 In addition to a record incapable of supporting
any request for attorney fees, the facts and circumstances of this
case support the trial court’s determination. Maya defaulted
after Cody’s attorneys requested three times that she file a
response to Cody’s petition. Rather than filing a response, Maya
repeatedly sought ex parte relief to which she was not entitled,
and did so with inappropriate litigation tactics, including filing
declarations that were later flatly contradicted by other evidence
and staging photographs to create evidence Maya believed would
undermine Cody’s petition. The record abounds with evidence
5 On July 21, 2017, Maya moved to strike portions of Cody’s
designation of the record on appeal on the ground that Cody
designated information Maya contends was improper for the trial
court to consider when it decided the orders she has appealed. As
noted, we do not agree that it was improper for the trial court to
consider those other issues in the contexts it did so. We therefore
deny Maya’s motion to strike.
15
that neither Maya nor Abboud pursued litigation tactics that
were either reasonable or necessary, but rather wielded
aggressive litigation tactics as merely one part of a multi-faceted
attack on Cody.
Here, the trial court considered the domestic abuse, Maya’s
litigation tactics, and the reasonableness and necessity of Maya’s
actions in the trial court, and came to a conclusion about “how to
apportion the cost of the proceedings equitably between the
parties under their relative circumstances.” (Falcone, supra, 203
Cal.App.4th at p. 975.) Based on the record before us, and
considering all of the evidence viewed most favorably in support
of the trial court’s order, Maya has not shown “that no judge
could reasonably have made the order” denying attorney fees.
(Winternitz, supra, 235 Cal.App.4th at p. 657.) The trial court
here undertook the analysis required of it, and did not abuse its
discretion when it denied Maya’s request for attorney fees.
4. The Judgment
Maya does not address in her brief why the judgment
should be reversed except that she believes it was entered based
on her default. The trial court’s order clarifies that it considered
the merits of Maya’s arguments “[b]ecause the best of interest of
a minor child is involved . . . .” We have determined that the trial
court did not abuse its discretion when it refused to set aside
Maya’s default. Even if it were error, however, we conclude that
the trial court’s consideration of Maya’s arguments on the merits
would render any error harmless. (See People ex rel. City of
Santa Monica v. Gabriel (2010) 186 Cal.App.4th 882, 887.)
Additionally, the judgment tracks the trial court’s previous
orders. We have found no error in the trial court’s entry of the
orders upon which the judgment is based, and appellant has not
16
presented any independent basis for us to disturb the trial court’s
judgment.
Outcome: The trial court’s judgment and orders are affirmed. The respondent is entitled to costs on appeal.
Plaintiff's Experts:
Defendant's Experts:
Comments: