HAROUNI, SHERLY N VS HAROUNI, KAMYAR

Tentative Rulings

Case Number: 17STFL08070 Hearing Date: November 18, 2022 Dept: 42

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Case Number: 17STFL08070 Hearing Date: December 13, 2021 Dept: 42

On November 2, 2021, counsel for Respondent filed a motion to withdraw as attorney for Respondent. The motion was duly served.

As of December 8, 2021, the court file does not show any opposition or response having been filed.

The tentative ruling is to GRANT the motion. Counsel should provide a proposed order to the clerk at or before the hearing on December 13, 2021.

Case Number: 17STFL08070    Hearing Date: February 24, 2021    Dept: 42

IRMO Harouni, Case No. 17 STFL 08070

Tentative Ruling for Hearing of February 24, 2021 on Petitioner's RFO for Attorney's Fees, filed January 15, 2021

On January 15, 2021, Petitioner filed an RFO seeking an order that Respondent pay $150,000 towards her attorney’s fees pursuant to Fam. Code ;2030. Under prior orders, Petitioner was awarded $345,000 for attorney’s fees, which have been fully paid. In her current RFO, Petitioner details Respondent’s expensive and time-consuming litigation tactics to date and the upcoming 5-day hearing on cross-requests for domestic violence restraining orders, which Petitioner expects to cost her about $50,000 in fees (approximately $10,000 per day).

Respondent opposes the request, detailing the prior orders, the amounts already awarded to Petitioner, and Respondent’s current financial predicament. Respondent also points out the absence of detail Petitioner’s request.

Petitioner has requested that the Court not consider Respondent’s papers because they were not timely filed and served. The Court in the exercise of its discretion declines to do so. As is apparent from the court file, Respondent was self-represented for a period of time and just recently engaged counsel. The Responsive Declaration and his Income & Expense Declaration were filed promptly after the Substitution of Attorney was filed. Under the circumstances, the Court finds it appropriate to consider Respondent’s papers.

Disparity in financial circumstances and access to funds

In the past, Respondent had access to funds from the disputed real property. Those properties are now being controlled by the Receiver and the funds generated can be reached only by court order. The Court has issued orders before that the Receiver release funds to Petitioner for attorney’s fees. The question here is whether the Court should do so again and, if so, in what amount.

The party seeking fees under Section 2030 bears the burden of establishing need for the fee award. Marriage of Falcone & Fyke (2008) 164 Cal. App. 4^th 814, 824. That party must submit sufficient information about the fees incurred or anticipated, why the fees are necessary and reasonable, and other information. Cal. Rules of Court rule 5.427(b)(2); Marriage of Keech (1999) 75 Cal. App. 4^th 860, 870. The trial court must make findings on whether there is a disparity in access to funds for counsel, and whether one party is able to pay for legal representation of both parties.  In re Marriage of Morton (2018) 27 Cal. App. 5^th 1025, 1052-1054; In re Marriage of Smith (2015) 242 Cal. App. 4^th 529, 534-36. 

The Court has previously detailed the disparity in the parties’ financial circumstances in connection with prior attorney’s fees award to Petitioner. Some matters have changed since then:

1. Petitioner is now unemployed due to COVID pandemic circumstances.

2. Respondent states that he, also, is unemployed because the Receiver is now managing the disputed properties instead of Respondent himself.

3. Petitioner contends that Respondent has other properties that are generating unreported income.

4. Respondent’s counsel and forensic accountant were disqualified, an appeal was filed from that ruling, and then the appeal was abandoned by stipulation.

The key circumstances – valuable real estate holdings generating income that is held by the Receiver but also incurring expenses (repairs, upkeep, management fees, and the Receiver’s fees) and Respondent claiming to be destitute but having adequate funds for rent and a car payment – remain the same.

The amount currently available from the Receiver is not known. As of October 31, 2020, less than four months ago, however, the total balance in the receivership bank accounts was $544,966, of which $61,713 was designated for upcoming payments and debt service.

Reasonably necessary fees

Attorney’s fees may be ordered in an “amount reasonably necessary” for “maintaining or defending the proceeding.” Fam. Code, ; 2030(a)(1). The amount of the award is within the discretion of the court, based on what would be “just and reasonable under the relative circumstances of the respective parties.” Fam. Code ;2032(a) and (b). 

In determining the reasonableness of the fees request, the court may consider the trial tactics of each side. In re Marriage of Ciprari (2019) 32 Cal. App. 5th 83, 112; In re Marriage of Sorge (2012) 202 Cal. App. 4th 626, 662; In re Marriage of Tharp (2010) 188 Cal. App. 4^th 1295, 1314; In re Marriage of Falcone & Fyke, supra, 203 Cal. App. 4^th at 975; In re Marriage of Keech, supra, 75 Cal. App. 4th at 870–871.  Notwithstanding the parties' relative economic circumstances, a request for an award is properly denied if a case has been over litigated or if the fees otherwise were not “reasonably necessary.”  Id.

Here, Petitioner states that fees for the 5-day DVRO hearing will be approximately $69,750 and that fees for the 5-day trial on the property issues fees will be approximately $64,150. Petitioner also states that at the time of filing this fees request, she had an outstanding balance of over $60,000 in attorney’s fees and costs.

In view of the litigation to date and the tactics utilized, the Court finds that Petitioner’s request for $150,000 represents an amount that is reasonably necessary for the proceeding.

Order

The Court GRANTS Petitioner’s RFO for attorney’s fees in the amount of $150,000 and orders the Receiver to release that amount to Petitioner’s attorney.

The Receiver, after review of the property finances, shall determine whether the amount of $150,000 can be released forthwith without interfering with the management of the properties and, if not, then the Receiver shall set a schedule for release of the funds as quickly as possible but in no event shall the final payment be later than July 1, 2021.

Case Number: 17STFL08070    Hearing Date: September 21, 2020    Dept: 42

In re Marriage of Harouni, Case No. 17 STFL 08070

Petitioner’s Motion for Reconsideration, filed August 21, 2020

Tentative Ruling

On August 21, 2020, Petitioner filed a Motion for Reconsideration asking the Court to reconsider its order of August 13, 2020, and to modify and to clarify the stay issued in that order.

The Court finds that the Motion for Reconsideration was timely filed, is based on new facts or circumstances not previously presented, that Petitioner has provided a satisfactory explanation for the failure to present them before, and that the Court may properly consider the merits of the Motion. In the alternative, the Court, in the exercise of its discretion, deems the Motion to be a request for modification of, and/or relief from, the stay issued in the order of August 13, 2020, and finds it is proper to consider the merits of the Motion on that basis, also.

The Court grants the Motion for Reconsideration and, having reconsidered the stay issued in the order of August 13, 2020, the Court modifies and clarifies the stay order as follows:

• The stay order shall not prevent any RFO for attorney’s fees and costs in this case and/or for appeal, pursuant to Fam. Code ;2030, and related sections;

• The stay order shall not cause the loss of jurisdiction for purposes of retroactivity with respect to Petitioner’s RFO filed January 25, 2018;

• The stay order shall not stay the Court’s prior orders authorizing and directing Mr. Alsbrook to serve as Receiver in this matter; and

• The order that the 5-day trial on the DVROs requests, including the request for child custody orders, may proceed, while the rest of the case is stayed, is not modified and remains as issued on August 13, 2020.