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Filed 6/29/22 Showers v. Mathews CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

MARK O. SHOWERS, as Trustee, 

etc.,

Plaintiff and Respondent,

v.

ROBERTA MATHEWS,

Defendant and Appellant;

EDWIN BRADLEY,

Appellant.

 A163900

 (Sonoma County

 Super. Ct. No. SPR-094146)

MEMORANDUM OPINION1

Defendant Roberta Mathews and her counsel appeal from the trial 

court’s award of $11,300 in monetary sanctions against them pursuant to 

Code of Civil Procedure section 128.7. We affirm. 

1 We resolve this case by memorandum opinion under California 

Standards of Judicial Administration, section 8.1.
2

I.

BACKGROUND

A. Underlying Facts

Delbert Joseph Mathews (Joe) 2 and Roberta Mathews first married in 

1958. Joe and Roberta divorced in 1989. After the divorce, Joe married Zieta 

R. Mathews. 

On October 10, 2000, Joe and Zieta, as husband and wife (settlors)

executed the Mathews 2000 Trust (Trust). Three years later the settlors 

executed a first amendment to the Trust. In February 2015, Zieta died and 

Joe became the sole surviving settlor and trustee of the Trust. 

In December 2015, Joe executed the first amendment to the survivor’s 

trust, which amended the dispositive provisions of the survivor’s trust 

created under the terms of the Trust. Roberta Mathews is a beneficiary of 

the survivor’s trust, and under the terms of the first amendment to the

survivor’s trust, she is entitled to receive $50,000 upon Joe’s death. Joe 

remarried Roberta in October 2018. 

Joe died in February 2019. Upon his death, Mark O. Showers became 

the sole acting successor trustee of the Trust, including the survivor’s trust. 

Mark served Roberta with a notification by trustee pursuant to Probate Code 

section 16061.7, and copies of the Trust, the first amendment to the Trust 

and the first amendment to the survivor’s trust. The 120-day period to 

contest pursuant to Probate Code section 16061.7 expired on October 18,

2019. 

2 For ease of understanding, we refer to the parties by their first 

names. We intend no disrespect in doing so. 
3

B. Roberta’s Omitted Spouse Petitions

On April 15, 2020, Roberta filed a verified objection and cross-petition 

as an omitted spouse, seeking an order to revoke or otherwise modify the 

Trust (first petition). Roberta alleged that she was an omitted spouse 

pursuant to Probate Code section 21610 et seq. and Joe did not intend to 

disinherit her. She sought an order affirming, among other things, that she 

was entitled to one-half of Joe’s community property and quasi-community 

property. 

The trial court set a hearing on whether the first petition was barred by 

the 120-day statute of limitations under Probate Code section 16061.8. Mark 

argued the first petition constituted the bringing of an action or contest under 

Probate Code section 16061.8. Roberta contended she was not contesting the 

Trust, but instead seeking a determination of her rights as a Trust 

beneficiary and as an omitted spouse under state law, and thus the first 

petition was not a contest or action within the meaning of Probate Code 

sections 16061.8 or 21310, subdivision (b). 

The trial court ruled that the first petition constituted a contest under 

Probate Code section 16061.8 was time-barred by the 120-day limitation 

period. After this ruling, however, the trial court ordered further briefing on 

the additional issue of whether Roberta was nonetheless entitled to 

separately pursue her omitted spouse rights in the Trust proceeding under 

Probate Code sections 21610 and 13501. 

The parties submitted further briefing, and in February 2021, the trial 

court ruled that Roberta’s first petition was barred by the limitation period of

Probate Code section 16061.8. The court noted the first petition, which 

requested the Trust be revoked, amounted to a contest within the meaning of 

section 16061.8. The court also found Roberta was a beneficiary of the 
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survivor’s trust as amended and her first petition was therefore untimely. 

The trial court entered its order dismissing the first petition with prejudice. 

Roberta did not seek reconsideration of the order or appellate review. 

The next month, Roberta filed a second verified claim of omitted spouse 

with a request for an evidentiary hearing and findings of fact and law 

pursuant to Probate Code sections 13501 and 21610 (second petition). 

Roberta’s second petition again claimed she was the lawful spouse of Joe at 

the time of his death, that her interest in his estate was omitted, and that 

she is presumed to be an omitted spouse entitled to one-half of his estate. 

She included substantially the same set of facts as set forth in her first 

petition and included the same request that the trial court determine she is 

an omitted spouse under Probate Code section 21610. 

Mark filed a demurrer to the second petition, arguing among other 

things that the attempt to relitigate the omitted spouse claim was improper, 

harassing, and frivolous, and was barred by res judicata and collateral 

estoppel based on the trial court’s prior ruling on the first petition. Roberta 

filed an opposition.3 The trial court sustained the demurrer without leave to 

amend on the ground the second petition was barred by res judicata. The 

trial court also observed that Roberta had not cited any new or different legal 

authority or facts warranting a reconsideration or reversal of the court’s 

order on the first petition. 

C. Sanctions Motion

In June 2021, Mark filed a motion for sanctions against Roberta and 

her counsel, Edwin Bradley, under Code of Civil Procedure4 section 128.7. 

Mark argued that the second petition was based on the same facts and law 

3 The opposition is not included in the record on appeal. 

4 Undesignated statutory references are to the Code of Civil Procedure. 
5

that were the subject of the first petition, which the trial court had already 

ruled was barred by the statute of limitations. Mark argued the second 

petition was thus improper, frivolous, harassing, and obstructive, and was 

barred by res judicata and collateral estoppel. 

In August, eight days after the court sustained the demurrer to the 

second petition without leave to amend, Roberta filed her opposition to the 

sanctions motion. The opposition contained less than two full pages of text 

with no citations to the second petition or any legal authority, and was 

unaccompanied by a declaration or request for judicial notice. Roberta’s 

opposition argued that the second petition was filed not to relitigate issues 

already decided by the court, but “only to keep [Roberta’s] claim before the 

Court so that it might be resolved in accordance with the law and precedent 

based on facts established at hearing.” The opposition cursorily asserted that 

the second petition was not filed to revisit the statute of limitations ruling, to 

harass or oppress Mark or his counsel, to cause unnecessary delay, or to 

increase the cost of litigation, and was not frivolous. It also stated, again 

without citation to or discussion of authority, that “Roberta’s claim as an 

omitted spouse is well established in California law and is plainly 

meritorious” and asserted that the “legal merits of [Roberta’s] claims are 

known to the Court and are addressed more specifically” in the opposition to 

the demurrer to the second petition. In his reply brief, Mark pointed to the 

court’s ruling sustaining the demurrer to the second petition without leave to 

amend and argued Roberta’s repeated attempts to bring her omitted spouse 

claim in the Trust proceeding was improper. 

After issuing a tentative ruling granting the motion for sanctions, the 

trial court heard argument from the parties. Attorney Bradley argued that

“[t]he second petition . . . did not seek to break this trust,” but “only to bring 
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to the Court’s attention legal and equitable principles that pertain to 

[Roberta] as an omitted spouse of the decedent.” He argued the court “could 

exercise [its] legal and . . . equitable powers, which are extremely vast and 

extremely broad to make sure this woman was not left out in the cold,” and 

urged that the court “had the powers regardless of the 120-day period to find 

a way to craft some resolution for this woman.” He also emphasized that 

there was “nothing bad faith” and “certainly . . . nothing frivolous” about the 

second petition. Mark’s counsel argued that sanctions under section 128.7 do 

not require an improper motive or subjective bad faith, and urged the trial 

court to affirm its tentative ruling granting the sanctions motion.

In making its ruling, the trial court expressly noted, “I don’t think 

there was necessarily any intent to engage in wrongdoing by counsel of any 

sort . . . . ,” and accepted Bradley’s representations about his conduct. The 

court concluded, however, that it would grant the sanctions motion because 

the second petition was “undisputedly [sic] without merit” and brought solely 

to relitigate the issue that had already been ruled upon based on the statute 

of limitations. On September 3, 2021, the trial court entered its order 

granting the sanctions motion and awarding Mark $11,300 in monetary 

sanctions against both Roberta and Bradley. Roberta and Bradley5 timely 

appealed. 

5 The parties dispute whether Bradley has successfully maintained his 

appeal from the trial court’s order. Mark observes the notice of appeal lists 

only Roberta as the defendant/respondent, but also indicates Edwin Bradley 

is attorney for “Respondent/Appellant Roberta Mathews & Edwin Bradley.” 

However, Mark contends that other filings, including the certificate of 

interested entities or persons, the opening brief, and the motion to augment 

the record, suggest Bradley has abandoned his appeal. Consistent with our 

obligation to liberally construe the notice of appeal, the policy of the law 

favoring decisions on the merits, and the lack of prejudice to Mark, we 

conclude both Bradley and Roberta have appealed the September 3, 2021 
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II.

DISCUSSION

The sole issue on appeal is whether the trial court erred in imposing 

sanctions against Roberta and Bradley. 

Under section 128.7, subdivision (b) parties and attorneys who present 

the court with pleadings or similar papers must certify that (1) the pleadings 

or papers are “not being presented primarily for an improper purpose, such 

as to harass or to cause unnecessary delay or needless increase in the cost of 

litigation,” and that (2) “[t]he claims, defenses, and other legal contentions 

therein are warranted by existing law or by a nonfrivolous argument for the 

extension, modification, or reversal of existing law or the establishment of 

new law.” (§ 128.7, subd. (b)(1)–(2).) Subdivision (c) authorizes the court to 

impose an “appropriate sanction” on parties, attorneys, or law firms that 

violate subdivision (b), or are responsible for violations of subdivision (b). 

(§ 128.7, subd. (c).) 

In assessing whether a party or attorney has violated section 128.7, the

trial court must determine whether the pleading or similar paper “was filed 

for an improper purpose or was indisputably without merit, either legally or 

factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440 (Peake); 

Bucur v. Ahmad (2016) 244 Cal.App.4th 175, 189 (Bucur).) “A claim is 

factually frivolous if it is ‘not well grounded in fact’ and it is legally frivolous 

if it is ‘is not warranted by existing law or a good faith argument for the 

order imposing monetary sanctions of $11,300 against them. (See K.J. v. Los 

Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882, 885 [“a reviewing 

court must construe a notice of appeal from a sanctions order to include an 

omitted attorney when it is reasonably clear that the attorney intended to 

join in the appeal, and [the] respondent was not misled or prejudiced by the 

omission”].) It is sufficiently clear from the arguments in the opening brief 

that Bradley challenges the trial court’s sanctions order against him.
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extension, modification, or reversal of existing law.’ [Citation.] In either 

case, to obtain sanctions, the moving party must show the party’s conduct in 

asserting the claim was objectively unreasonable. [Citation.] A claim is 

objectively unreasonable if ‘any reasonable attorney would agree that [it] is 

totally and completely without merit.’ ” (Bucur, at p. 189.) 

We review an order imposing sanctions under section 128.7 for abuse of 

discretion. (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1121.) “We 

presume the trial court’s order is correct and do not substitute our judgment 

for that of the trial court. [Citation.] To be entitled to relief on appeal, the 

court’s action must be sufficiently grave to amount to a manifest miscarriage 

of justice.” (Peake, supra, 227 Cal.App.4th at p. 441.) 

Bradley argues the trial court abused its discretion in issuing the 

sanctions order here because it “fail[ed] to make any findings in the record 

memorializing the basis of its determination that [Roberta] had violated the 

statute.” We disagree. 

When imposing sanctions under section 128.7, the trial court “shall 

describe the conduct determined to constitute a violation” of the statute “and 

explain the basis for the sanction imposed.” (Id., subd. (e).) Here, the trial 

court explained at the hearing on the motion that the second petition was 

“undisputedly [sic] without merit” and brought solely to relitigate an issue on 

which it had already ruled. Further, in its written order, issued after the 

hearing, the trial court expressly found that Roberta’s omitted spouse claim 

was “ill-advised” because the court had “ultimately sustained the Trustee’s 

demurrer to the claim, without leave to amend, on the grounds it was barred 

by res judicata.” The trial court concluded the second petition was “an 

attempt to relitigate the same matter previously conclusively decided in the 

trust action after extensive briefings and hearings.” As the court explained, 
9

“[a]t some point, dissatisfaction with an outcome must be addressed in a 

different forum, not simply repeatedly raised in the same action. The fact 

that Roberta has again sought what amounts to the same relief in this action 

via a new petition lends credence to the conclusion that the claim that is [the] 

subject of this motion was filed for an improper purpose or that was 

‘indisputably without merit’ at the time it was filed . . . .” The trial court 

further observed that while “[z]ealous advocacy is one thing, repeated 

attempts to litigate an issue settled after a full and fair hearing, and 

continuing undue consumption of court and party resources without any new 

or different basis to do so, is quite another. (See, Code Civ. Proc., § 128.7[, 

subd.] (b); see also, McCluskey v. Henry (2020) 56 Cal.App.5th 1197, 1204–

1205; Peake[, supra,] 227 Cal.App.4th [at p.] 440 . . . .)” Bradley and Roberta 

have failed to demonstrate that this description of their conduct was deficient 

or lacked a proper basis for the imposition of sanctions. (See Hopkins & 

Carley v. Gens (2011) 200 Cal.App.4th 1401, 1418 [trial court order imposing 

sanctions that simply stated that a motion was without legal support and for 

an improper purpose satisfied the requirements of § 128.7, subd. (e)].) 

As the trial court’s written order makes clear, the court specifically 

identified the conduct that constituted a violation of section 128.7 and its 

reasons for imposing sanctions so as to satisfy subdivision (e). The court 

explained that the second petition improperly sought to relitigate the matter 

conclusively decided in the first petition after “extensive briefings and 

hearings” and accordingly, was barred by res judicata. That finding is 

supported by the appellate record, which reveals that the second petition was 

based on substantially the same set of facts as the first petition, and like the 

first petition, asserted Roberta was an omitted spouse under Probate Code 

section 21610 entitled to one-half of Joe’s estate. Because Roberta sought the 
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same relief in a new petition based on the same facts, the court appropriately 

determined the second petition was without merit. (See, e.g., Bucur, supra,

244 Cal.App.4th at p. 191 [“Filing a new complaint based on the same facts to 

evade a ruling made in a previous litigation constitutes sanctionable conduct 

under section 128.7.”].) 

Bradley also contends the trial court’s order was an abuse of discretion

because the court “expressly found no intention by counsel to engage in 

wrongdoing.” But sanctions under section 128.7 do not require evidence of an 

improper motive or subjective bad faith.6 (Peake, supra, 227 Cal.App.4th at 

p. 449; Bucur, supra, 244 Cal.App.4th at pp. 189–190.) Although the trial 

court acknowledged that Bradley apparently had no bad faith intent to 

engage in wrongdoing, it specifically found that the attempt to relitigate 

matters conclusively barred by res judicata was objectively without merit. 

Bradley has failed to show that ruling was an abuse of discretion. 

In his opening brief on appeal, Bradley also argues sanctions are not 

warranted because Roberta’s claims are supported by an important public 

policy protecting the rights of omitted spouses. Relying primarily on Estate of 

Leonetti (1981) 115 Cal.App.3d 378, 383, he contends Roberta’s rights as an 

omitted spouse stand on their own in spite of the Trust and by operation of 

law. 

Bradley failed to raise and support this argument with any legal 

authority in his opposition to the sanctions motion or at the hearing before 

the trial court. Accordingly, we deem the argument forfeited.7 (See Peake, 

6 Indeed, even Bradley argues, “[s]ection 128.7 provides the remedy for 

‘dishonest, reckless or negligent pleading practice.’ ” (Italics added, quoting 

Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 82–83.) 

7 Even were we to consider the argument, however, we would reject it 

because Bradley had the opportunity to, and did, brief this legal issue in 
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supra, 227 Cal.App.4th at p. 443 [“Because a trial court has broad discretion 

in ruling on a sanctions motion, it is incumbent on the party opposing the 

motion to proffer all factual and legal theories showing the party’s challenged

assertions were not frivolous and had at least some merit. By failing to raise 

this theory before the trial court, the trial court was not provided the 

opportunity to evaluate the theory as part of its exercise of discretion. Thus,

the point is forfeited.”]; Premier Medical Management Systems, Inc. v. 

California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.) 

One other issue remains for our consideration. In the respondent’s 

brief, Mark’s counsel correctly notes that under section 128.7, subdivision

(d)(1), sanctions awarded pursuant to section 128.7, subdivision (b)(2) cannot 

be imposed on the client for the conduct of the attorney. Under subdivision 

(b)(2), an attorney submitting a pleading to the court is certifying that the 

claims and legal contentions in it are warranted by existing law or a 

nonfrivolous argument for its extension, modification, or renewal. “However, 

sanctions may be awarded against a party if other conditions in subdivision 

(b) are violated, including paragraph (1), which precludes pleadings 

‘presented primarily for an improper purpose, such as to harass or to cause 

unnecessary delay or needless increase in the cost of litigation.’ ” (Burkle v. 

Burkle (2006) 144 Cal.App.4th 387, 402–403 [§ 128.7 sanctions against 

attorney and client were appropriate where the trial judge found client had 

response to the trial court’s request for supplemental briefing on the first 

petition. Bradley makes no effort to demonstrate his second petition 

asserting the same claim asserted in the first petition that Roberta was 

entitled to one-half of Joe’s estate as an omitted spouse was not barred by res 

judicata as the trial court concluded. (See Bucur, supra, 244 Cal.App.4th at 

p. 191.)
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caused the costs of litigation to increase by bringing her “ ‘unsupportable’ ” 

legal claim in “ ‘yet another Court’ ”].) 

Here, it is somewhat unclear from the record whether the trial court 

found the second petition was filed for an improper purpose under section 

128.7, subdivision (b)(1).8 The order stated, “Roberta has again sought what 

amounts to the same relief in this action via a new petition[,] lend[ing] 

credence to the conclusion that the claim that is [the] subject of this motion 

was filed for an improper purpose or that it was ‘indisputably without 

merit.’ ” The court’s order also stated that “Zealous advocacy is one thing, 

repeated attempts to litigate an issue settled after a full and fair hearing, and 

continuing undue consumption of court and party resources without any new 

or different basis to do so, is quite another.” These statements suggest the 

court found the second petition had been filed for an improper purpose. 

However, the trial court also expressly stated at the hearing on the sanctions 

motion, “I don’t think there was necessarily any intent to engage in 

wrongdoing by counsel of any sort . . . . ,” and accepted Bradley’s 

representations about his conduct that he did not intend to delay the 

litigation or harass opposing counsel. In light of the ambiguity in the trial 

court’s findings and order with respect to whether the second petition was 

filed for an improper purpose under section 128.7, subdivision (b)(1), we will 

reverse the award of sanctions against Roberta only. 

8 As discussed above, it is clear from the entire substance of the trial 

court’s order and its remarks at the hearing that the court concluded the 

second petition was “ ‘indisputably without merit’ ” because it sought to 

relitigate an issue on which it had already ruled. (See § 128.7, subd. (b)(2); 

Peake, supra, 227 Cal.App.4th at p. 440.)
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III.

DISPOSITION

The trial court’s September 3, 2021 order is modified to award 

sanctions as against Edwin Bradley only. In all other respects, the order is 

affirmed. Respondent is to recover costs on appeal. 

MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

A163900

Showers v. Mathews