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Unappealing Behavior

(Balancing often conflicting public policies, courts have been reluctant to grant sanctions on appeal except for the most egregious conduct)

By Honey Kessler Amado

As Published in the Los Angeles Lawyer Magazine
Volume 20 #11, February 1998

Honey Kessler Amado, a sole practitioner, is a California State Bar certified appellate law specialist. She sits on the Los Angeles County Bar Association's Appellate Courts Committee and the Los Angeles Lawyer Editorial Board.

SIDEBAR: See Bottom of Article

Sanctions are one of the most coveted remedies on appeal-the coup de grâce to an aggravating opponent. Yet many a disappointed litigant has learned that sanctions on appeal are rarely granted. A request for sanctions highlights the natural tension between two public policies: one favoring vigorous representation, the other discouraging irresponsible litigation. To protect both policies, certain rules have evolved. Governed by Code of Civil Procedure Section 9071 and California Rules of Court, Rule 26(a),2 sanctions may be granted when an appeal or writ petition3 is frivolous, or taken solely to delay finality of the judgment, or is an unreasonable infraction of the rules governing appeals.

Marriage of Flaherty,4 the seminal case on the issue of sanctions, distilled two standards for determining whether an appeal is frivolous: a subjective standard and an objective standard. The subjective standard measures motive, while the objective standard weighs the merits of the appeal. Sanctions may be awarded under either standard.

The subjective standard looks to the motives of a litigant and his or her counsel. If the appeal is taken solely for an improper motive, such as to delay the impact or payment of a judgment or order or to harass the other side, the appeal will be deemed to be frivolous. In Hersch v. Citizens Savings and Loan Association,5 for example, the court recognized the defendants had undertaken an appeal simply to delay payment of a million-dollar judgment. The court observed that:

[The] defendants' motive in this case is as easy to understand as it is difficult to hide. For nearly five years [the] defendants have had the use of approximately $1 million legally owed by them to [the] plaintiffs. It is common knowledge that a conservative investment during this same period would have earned annual interest greatly in excess of the 7 percent, and later 10 percent, payable upon civil judgments....[P]ostponement of payment of this judgment was a profitable venture....[W]e are compelled to the conclusion that material gain through delay was and is their motive.6

Certainly, the subjective standard is elusive and defies precise definition. Like all subjective tests, a finding of intent to harass or delay requires an intuition that is perhaps born of experience. As one California appellate justice noted, paraphrasing U.S. Supreme Court Justice Potter Stewart, "I cannot describe it, but I will know it when I see it."7

Nevertheless, the subjective test is not arbitrary. Due to the punitive nature of sanctions, an intent to delay must be established by clear and convincing evidence.8 This burden of proof exceeds the preponderance-of-evidence standard but falls below the criminal standard of beyond a reasonable doubt. Still, it is a difficult burden to meet.

In San Bernardino Community Hospital v. Meeks, the case that set forth the clear and convincing standard a decade ago, the question was whether two local hospitals had pursued an appeal simply to block construction of a hospital by a competitor. The evidence of delay included: o A short, ineffective opening brief jointly filed by the two hospitals, which were each represented by strong appellate counsel.

o A letter from appellate counsel for one of the appellants acknowledging that his office represented "three...hospital systems in California which are attempting to resist major new hospital developments by for-profit chains" and that "the cases involve a new hospital...[that] is opposed by [my client]...."9 o Disingenuous arguments regarding the prejudicial impact of the appeal.

o Statements presented during oral argument that the appellate court characterized as "perilously close to professional misconduct."10

The evidence against delay consisted of counsel's statements that:

o The relevant statutes had never been construed by a published opinion.
o Counsel believed the administrative law judge's decision was unauthorized.
o The appeal was not taken for the purpose of delay.11

Luckily for the appellant hospitals, the court declined to impose sanctions. The court acknowledged that only one member of its three-member panel was "absolutely convinced" the appeal was taken solely for delay; one member was "equally convinced" the appeal was not taken solely for delay, and the third was uncertain. The court concluded that the diversity of the opinions on the panel indicated the evidence of delay was not clear and convincing; thus, the court did not impose sanctions.12 If Division 2 of the Fourth District was kind in not imposing sanctions against the established hospitals, Division 1 of the Fourth District was positively compassionate in declining to impose sanctions in Cox v. County of San Diego against a litigant who had violated court rules and presented an "inartful" brief.13 In violation of court rules, the appellant's opening brief did not include a statement of the case and the relief sought, a summary of the facts, or a statement of the judgment or ruling being appealed. At a loss insofar as knowing the appellant's issues, the respondent was forced to address all conceivable issues.14 Further, the appellant's arguments were not supported by the statutes and relevant case law.15 Nevertheless, the appellate court declined sanctions because it concluded that "we cannot say that any reasonable attorney familiar with this case would not have pursued some type of appeal... and it has not been shown the appeal was taken for an improper purpose or solely for delay...."16

The court's reference to "any reasonable attorney" alludes to Flaherty's objective standard-the second standard-for determining whether an appeal is frivolous. The objective standard looks to the merits of an appeal from a reasonable person's perspective.17 The question is not whether the attorney acted in the honest belief that he or she had grounds for an appeal, but "whether any reasonable person would agree that the point is totally and completely devoid of merit."18 Thus, Division 2 of the Fourth District declined to award sanctions not because appellant's counsel believed in the merits of the case but because the appellate court could not say that any reasonable attorney would have agreed the case was without merit.

Because grounds for sanctions can be either the subjective or objective standard of "frivolous," an appeal can be sanctioned as frivolous when it is prosecuted for an improper motive or when it indisputably has no merit.19 Under either standard, the appeal squanders judicial resources and should be subject to sanction.

The subjective and objective standards often are used together to establish that an appeal is frivolous, with one standard used to show the other has been violated.20 A total lack of merit-the objective standard-is viewed as evidence that the appeal must have been intended to delay the effect of the judgment or to harass the other side-the subjective standard.21 In Marriage of Economou, for example, the appellant husband had filed a brief unsupported by the facts of the case or by any citations to relevant case law. Concluding that his appeal "is not merely without merit, but fits within Flaherty's definition of 'frivolous,'"22 the court recognized the husband had brought the appeal for "no other reason than to harass [his] wife and delay distribution of the couple's community property assets."23

Another example of one standard proving the other is Portola Hills Community Association v. James, in which an appeal by a planned community association was based on two contentions that lacked merit. The first was based upon a variance that had not been presented as a factual or legal issue to the trial court.24 The second, "even more egregious" according to the appellate court, was the association's "audacity" to complain that the trial court had based its ruling on its "mistaken belief" about the impact of a particular bylaw-a belief that had been provided to the court by the association.25 According to the appellate court, no reasonable attorney could believe the appeal had merit, and therefore "[t]he only conclusion is that it was taken solely to harass [the] defendant or delay judgment."26

The situations in which sanctions will be imposed are predictable:

o There is no evidence or legal support for the issues raised on appeal.27
o The appeal is taken from a stipulated judgment that expressly waived the right to appeal.28
o There is a pattern of filing appeals from nonappealable orders for the purpose of harassment and delay.29

In reality, however, such situations are few and far between.30

More often, counsel is simply overzealous and overconfident, underestimating the burdens on appeal or not seeing the wisdom of ceasing the good fight. It is the fatigue or outrage of the battle that often prompts the tag-line request for sanctions. In most instances, the request is not likely to be granted31 because a distinction is made between an appeal that has no merit and one that has failed to win the argument on all issues. Simply losing an appeal will not give rise to sanctions. The courts are sensitive to the chilling effect that sanctions can have upon litigants asserting their rights on appeal:

Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of a fear of reprisals.32

Thus sanctions will not be imposed when an appeal raises a substantive question or an issue of first impression.33 Similarly, if an appeal encourages a reasonable change in the law after first acknowledging existing adverse law and explaining the need for the change, the appellant should not be subject to sanctions.34

The reluctance to impose sanctions serves the law well. Arguing for a change in the law is exciting. Such advocacy is the essence of the common law and is the strength of American jurisprudence.35 Without it, the law would never evolve. Sanctions thus should be used sparingly to deter only the most egregious conduct.36

Appellate advocacy, quite apart from the quality of counsel's legal analysis or argument, must conform with court rules. Sanctions may be imposed "for an unreasonable infraction of the rules governing appeals."37 The courts have not spoken on what violations of the rules will be deemed unreasonable infractions, a silence that perhaps signals that court rules will not be rigorously enforced. In Cox, the court "seriously considered" imposing sanctions for counsel's violation of court rules and "inartful presentation of arguments" but declined to do so, focusing instead on the subjective and objective merits of the appeal.38 In Say & Say v. Castellano,39 the court noted that a 131-page opposition to a motion to dismiss that "devote[d] less than 1 page to a discussion of the...ground for dismissal..." was frivolous in "form and content, obviously prepared for the purpose of obfuscation and delay...." Sanctions were awarded for filing the opposition but without further citation to form or procedure. The sanction was based on the familiar, objective ground that "[n]o attorney of reasonable competence could have thought this massive mountain of paper had any arguable merit whatsoever."40

Under Rule 26(e), which governs sanction awards, the court can refocus on its power to grant sanctions for unreasonable infractions of court rules.41 The expectation that lawyers must abide by court rules should not have a chilling effect on forceful advocacy. Nevertheless, taking care not to elevate form over substance, courts may continue to demonstrate their reluctance to impose sanctions short of egregious behavior such as a flagrant disregard of court rules or violations that unduly burden the court or the opposition.

The purpose of sanctions is to discourage future frivolous appeals and to compensate for the loss that results from the delay.42 Sanctions may be imposed upon the litigant and the attorney or exclusively on the attorney.43 The courts view the attorney as more responsible than the client for the sanctionable behavior because the attorney should be able to weigh the merits of the appeal and advise against pursuing it. Indeed, rules of professional conduct require that an attorney withdraw from a case rather than pursue a frivolous appeal, whether it be meritless or pursued for an improper purpose.44 An attorney in a civil case is not "a hired gun required to carry out every direction given by the client."45

Courts typically impose monetary sanctions, with the most familiar sanction taking the form of attorney's fees measured by the cost of responding to the frivolous appeal.46 The monetary sanctions may be a surcharge, awarded to a litigant in addition to fees and costs.47 When seeking sanctions or when the court gives notice it is considering granting sanctions, respondent's counsel should submit a detailed declaration of the fees and costs incurred to resist the appeal.48

Frivolous appeals do not injure simply one's opponent. Litigants with bona fide disputes long awaiting review in the appellate courts and the taxpayers who provide the funding for the courts are also injured by the wasteful diversion of limited resources.49 In recognition of these losses, the monetary sanction may be the estimated costs to the judicial system. As Justice H. Walter Croskey of the Second District observed in approving sanctions in National Secretarial Services, Inc. v. Froehlich:

It is perhaps time that the courts, both trial and appellate, begin to speak and react more forcefully with respect to cases such as this one. Such an abuse of the legal system for no other purpose than to avoid paying a legitimate claim simply can no longer be tolerated. It is not fair to the opposing litigant who is victimized by such tactics and it is not fair to the greatly overworked judicial system itself and those citizens with legitimate disputes waiting patiently to use it. In those cases where such abuse is present, an award of substantial sanctions is proper.50

Consistent with this sentiment, sanctions for the squandering of judicial resources, payable directly to the clerk of the court, have ranged from a conservative $3,99551 (the estimated average cost to process a civil appeal) to $15,00052 (the actual cost to the state assignable to the given case) to $25,00053 (a sum fixed to deter future wrongful conduct). These costs may be assessed in addition to attorney's fees.54

Monetary sanctions also can take the form of actual damages. In a case where the defendants took the appeal to delay paying a million-dollar judgment, the sanction was $125,000 to compensate for the plaintiff's lost investment interest.55 Sanctions measured by a litigant's actual loss may be in addition to sanctions in the form of attorney's fees.56 To establish the damages, respondents are well advised to include declarations that explain and document all of the losses incurred from a frivolous appeal.

In family law appeals, in addition to finding culpable conduct, the court must consider the parties' incomes, assets, and liabilities.57 The sanction may not be an "unreasonable financial burden" on the sanctioned party.58 Thus the threshold question in a family law matter will be whether the party to be sanctioned has the ability to pay the requested sanction.59 However, in contrast to the general family law attorney's fee statute, which requires the requesting party to establish its need,60 sanctions can be awarded without a showing of that need.61 Thus, in family law appeals, in the context of sanctions only, need for fees is not relevant.

Because sanctions are disciplinary and punitive in nature, the constitutional safeguards of due process must be followed.62 Before a sanction may be awarded, the party and attorney must have notice, an opportunity to respond, and a hearing.63 The notice must include all sanctions being considered by the court-specifically, attorney's fees, compensation to the state, and/or damages from loss of an investment.64 (See "Procedural Requirements," page 34.)

The courts are correct to apply sanctions sparingly and only to the most egregious behavior. The law is, after all, dynamic and subject to change, and clients are entitled to the best arguments and defenses available. Sanctions easily imposed would have a chilling effect on forceful representation and, over time, the ultimate loser would be society as a whole. Our nation's freedoms and vitality are best protected by strong advocacy and creative advocates.

1 Code Civ. Proc. §907 provides: "When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just."

2 Cal. R. Ct. 26(a) provides: "Where the appeal is frivolous or taken solely for the purpose of delay or where any party...has been guilty of any other unreasonable infraction of the rules governing appeals, the reviewing court may impose upon offending attorneys or parties such penalties, including the withholding or imposing of costs, as the circumstances of the case and discouragement of like conduct in the future may require."

3 Los Angeles County Dept. of Children and Family Servs. v. Superior Court, 37 Cal. App. 4th 439, 457, 43 Cal. Rptr. 2d 757, 768 (1995); Manzetti v. Superior Court (Fitzgerald), 21 Cal. App. 4th 373, 381-82, 25 Cal. Rptr. 2d 857, 862 (1993); Gottlieb v. Superior Court, 232 Cal. App. 3d 804, 814, 283 Cal. Rptr. 771, 777 (1991).

4 Marriage of Flaherty, 31 Cal. 3d 637, 183 Cal. Rptr. 508 (1982). Although Flaherty is the landmark case on the issue of sanctions, the California Supreme Court declined to impose the requested sanctions against the husband. The court acknowledged that his appeal raised substantial questions of law and that there was no evidence of subjective bad faith. See id., 31 Cal. 3d at 651.

5 Hersch v. Citizens Sav. and Loan Ass'n, 146 Cal. App. 3d 1002, 194 Cal. Rptr. 628 (1983).

6 Id., 146 Cal. App. 3d at 1012.

7 San Bernardino Community Hosp. v. Meeks, 187 Cal. App. 3d 457, 471, 231 Cal. Rptr. 673, 681 (1987).

8 Id., 187 Cal. App. 3d at 470.

9 Id. at 469-70.

10 Id. at 467.

11 Id. at 466, 469.

12 Id. at 471.

13 Cox v. County of San Diego, 233 Cal. App. 3d 300, 314, 284 Cal. Rptr. 266, 275 (1991), disapproved on other grounds in Zavala v. Arce, 97 Daily Journal D.A.R. 13347, 13349 n.8, 68 Cal. Rptr. 2d 571 (1997).

14 Cox, 233 Cal. App. 3d at 312.

15 Id. at 314.

16 Id. While Cal. R. of Ct. 18 provides other remedies for defective briefs, including striking the brief, Cal. R. of Ct. 26(e) authorizes sanctions for unreasonable violations of court rules. Thus, the County of San Diego, the respondent in Cox, elected to file its brief and seek sanctions for a frivolous appeal and defective brief. Similarly, in Alicia T. v. County of Los Angeles, 222 Cal. App. 3d 869, 271 Cal. Rptr. 513 (1990), the respondent elected to seek sanctions for a defective brief rather than have the brief stricken. Sanctions were imposed for the brief, which failed to comply with court rules, cited unpublished opinions, and ignored controlling published authorities. Id., 222 Cal. App. 3d at 886.

17 Flaherty, 31 Cal. 3d at 649.

18 Id.

19 Id. at 650; Hersch, 146 Cal. App. 3d at 1012 ("Furthermore, no determination of frivolousness is necessary when it is found that the purpose of the appeal was delay.").

20 Flaherty, 31 Cal. 3d at 650; Marriage of Schnabel, 30 Cal. App. 4th 747, 754, 36 Cal. Rptr. 2d 682, 686 (1994); Marriage of Economou (Economou II), 223 Cal. App. 3d 97, 105-06, 272 Cal. Rptr. 673, 678 (1990).

21 Flaherty, 31 Cal. 3d at 650; Economou II, 223 Cal. App. 3d at 105-06; National Secretarial Servs., Inc. v. Froehlich, 210 Cal. App. 3d 510, 525, 258 Cal. Rptr. 506, 514 (1989).

22 Economou II, 223 Cal. App. 3d at 106.

23 Id.

24 Portola Hills Community Ass'n v. James, 4 Cal. App. 4th 289, 294, 5 Cal. Rptr. 2d 580, 583 (1992), disapproved on other grounds in Nahrstedt v. Lakeside Village Condominium Ass'n, 8 Cal. 4th 361, 385-86, 33 Cal. Rptr. 2d 63 (1994). See also Ernst v. Searle, 218 Cal. 233, 240-41 (1933) (issues not raised in the trial court are deemed waived on appeal).

25 Portola Hills Community Ass'n, 4 Cal. App. 4th at 294.

26 Id.

27 Gottlieb, 232 Cal. App. 3d at 814; Kurokawa v. Blum, 199 Cal. App. 3d 976, 996, 245 Cal. Rptr. 463, 475 (1988).

28 Papadakis v. Zelis, 230 Cal. App. 3d 1385, 1387, 282 Cal. Rptr. 18, 20 (1991).

29 Say & Say v. Castellano, 22 Cal. App. 4th 88, 94-95, 27 Cal. Rptr. 2d 270, 273-74 (1994) (appellant not only filed a 131-page opposition to a motion to dismiss with only 1 page responding to the motion but also filed a 4,600-page appendix in which only 4 pages were pertinent to the motion); Kim v. Walker, 208 Cal. App. 3d 375, 379 n.4, 385, 256 Cal. Rptr. 223, 225 n.4, 229 (1989). In Kim, the appeal was one of approximately 20 lawsuits filed by the plaintiff against various attorneys, social workers, government agencies, and judicial officers whom he claimed had conspired to deprive him of visitation with his child. In federal court, he filed a suit against the U.S. and California governments, the California Supreme Court, and many prominent attorneys and jurists.

30 In the Second District, for example, Justice Paul Turner reported that in Division Five: [W]here sanctions are rarely imposed, the most likely scenario where the court will act pursuant to [Cal. R. of Ct.] 26(e) is when there is unreasoned relitigation of issues which have already been decided. When well-established res judicata or issue preclusion principles are a subject of an overt violation, there is a greater probability that sanctions will be imposed. Letter from Justice Paul Turner, Presiding Justice, Division Five, to Honey Kessler Amado (Sept. 24, 1997).

31 One justice in the Second District indicated his willingness to impose sanctions for frivolous appeals. Some years later he noted that the requests for sanctions had multiplied manyfold and had become routine. He was then considering issuing sanctions for an unwarranted request for sanctions!

32 Barkley v. City of Blue Lake, 47 Cal. App. 4th 309, 319, 54 Cal. Rptr. 2d 679, 685 (1996) (quoting Flaherty, 31 Cal. 3d at 650).

33 Marriage of Hinman, 55 Cal. App. 4th 988, 1003, 64 Cal. Rptr. 2d 383, 392 (1997); Barkley, 47 Cal. App. 4th at 318; Marriage of Levingston, 12 Cal. App. 4th 1303, 1307, 16 Cal. Rptr. 2d 100, 102 (1993).

34 See Tullai v. Homan, 195 Cal. App. 3d 1184, 1188, 241 Cal. Rptr. 255, 257 (1987).

35 See Umansky v. Urquhart, 84 Cal. App. 3d 368, 372, 148 Cal. Rptr. 547, 549 (1978):

The law... is not immutable. It remains in flux to allow for constructive change through the efforts of diligent and conscientious lawyers. It is through legal imagination and ingenuity in pleading that evolution of the law occurs.

36 Flaherty, 31 Cal. 3d at 651; see also Cox, 233 Cal. App. 3d at 314.

37 Cal. R. of Ct. 26(a), (e).

38 Cox, 233 Cal. App. 3d at 314.

39 Say & Say, 22 Cal. App. 4th 88.

40 Id. at 94-95. The sanctions were imposed against the attorney and the clients, and the court further directed that a copy of the opinion be forwarded to the State Bar.

41 Cal. R. of Ct. 26(e) became effective Jan. 1, 1995.

42 National Secretarial Servs., Inc., 210 Cal. App. 3d at 526-27; Economou II, 223 Cal. App. 3d at 107.

43 Los Angeles County Dept. of Children and Family Servs., 37 Cal. App. 4th at 457 n.12.

44 Cal. R. of Professional Conduct Rules 3-200, 3-700(B)(1).

45 Economou II, 223 Cal. App. 3d at 106.

46 Id. at 108.

47 Portola Hills Community Ass'n, 4 Cal. App. 4th at 295.

48 See City of Bell Gardens v. County of Los Angeles, 231 Cal. App. 3d 1563, 1573, 283 Cal. Rptr. 91, 97 (1991). In Hersch, 146 Cal. App. 3d at 1013, the court of appeal awarded sanctions and remanded the matter to the trial court to fix the amount. This procedure may be available for an inadequate declaration regarding the amount of fees, but query whether it would be applied in the absence of any declaration under the new rules.

49 Schnabel, 30 Cal. App. 4th at 755; Young v. Rosenthal, 212 Cal. App. 3d 96, 136, 260 Cal. Rptr. 369 (1989); Finnie v. Town of Tiburon, 199 Cal. App. 3d 1, 17, 244 Cal. Rptr. 581 (1988).

50 National Secretarial Servs., Inc., 210 Cal. App. 3d at 526.

51 Alicia T., 222 Cal. App. 3d at 886.

52 Economou II, 223 Cal. App. 3d at 108.

53 City of Bell Gardens, 231 Cal. App. 3d at 1574. The court of appeal made an express finding that the sanction was against the county only and not against its counsel, noting that the deputy county counsel was not personally responsible for the county's decision to pursue the appeal. Id. at 1573 n.4.
54 Economou II, 223 Cal. App. 3d at 108.

55 Hersch, 146 Cal. App. 3d at 1013.

56 Id. ("Attorney's fees on appeal are awarded to plaintiffs in an amount to be determined by the trial court.").

57 Fam. Code §271(a).

58 Id.

59 Marriage of Hublou, 231 Cal. App. 3d 956, 964, 282 Cal. Rptr. 695, 699 (1991).

60 Fam. Code §§2030, 2032.

61 Marriage of Daniels, 19 Cal. App. 4th 1102, 1109, 23 Cal. Rptr. 2d 865, 869 (1993).

62 Flaherty, 31 Cal. 3d at 654.

63 Id.

64 National Secretarial Servs., Inc., 210 Cal. App. 3d at 527.

SIDEBAR: Procedural Requirements

The procedures for seeking sanctions on appeal are set forth in California Rules of Court, Rule 26(e). The request must take the form of a formal motion and must be filed no later than 10 days after the time when the appellant's reply brief is due. The motion must include a declaration supporting the amount of sanctions being sought. The court must notify a party or attorney when considering the imposition of sanctions, whether the action is based on the court's own motion or on a party's motion.

The party or attorney against whom sanctions are being sought may serve and file a written opposition within 10 days after notice from the court that it is considering imposing sanctions.1 The time for filing an opposition begins to run only when the court gives notice that it is considering imposition of sanctions or requests the party's or attorney's views on the issue.2 If the court does not give notice, it is not considering sanctions and the appellant need not and should not file an opposition to the request. Thus appellants are freed from responding to meritless requests for sanctions. These current procedures have roots in the practical world. Before implementation of these rules, sanctions were requested in the respondent's brief with such routine predictability that many practitioners declined to respond to the request unless requested to do so by the court. An appellant's failure to respond to the court's notice, while ill-advised, is not deemed to be consent to an award of sanctions.3 The issue of sanctions and their amount is generally argued at the time of oral argument on the merits of the appeal.4 If sanctions are issued, the court should provide the litigants with a written statement of its reasons.5-H.K.A.

1 Cal. R. of Ct. 26(e).
2 Id.
3 Id.
4 Id.
5 Marriage of Flaherty, 31 Cal. 3d 637, 654 (1982); Marriage of Economou (Economou II), 223 Cal. App. 3d 97, 108 (1990).