1

Filed 11/7/23 Marriage of Thompson 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

In re the Marriage of RICHARD 

LEE THOMPSON and RHONA 

FOGARTY THOMPSON.

RICHARD LEE THOMPSON,

Appellant,

v.

RHONA FOGARTY THOMPSON,

Respondent.

 A164210

 (San Mateo County

 Super. Ct. No. 19FAM01440)

Richard (Rick) Lee Thompson appeals from an order requiring him to 

pay Rhona Fogarty Thompson1 $300,000 in sanctions pursuant to Family 

Code section 271.

2 Rick makes two claims on appeal—the trial court abused 

its discretion by refusing to hear live testimony and the court erred in finding 

he failed to pay an earlier discovery sanction. We agree with the latter 

contention and therefore reverse in limited part. In all other respects, we

affirm. 

1 As do the parties, we use first names for clarity. 

2 All further statutory citations are to the Family Code unless 

otherwise indicated. 
2

BACKGROUND3

Two years into this contentious divorce proceeding, Rhona sought 

$600,000 in sanctions against Rick pursuant to section 271. She maintained

Rick refused to engage in behavior that advanced settlement or assisted in 

preparing the case for trial. In her supporting declaration, Rhona averred

Rick failed to reply to Rhona’s attempts to resolve multiple issues, impeded 

the discovery process, maintained an unreasonable position regarding the 

status of the marital estate, and instructed his attorney to communicate with 

him only once a month. As an example, Rhona stated her counsel had 

proposed to Rick’s counsel that the parties appoint a discovery referee, but

Rick failed to respond. Indeed, he had yet to respond at the time she filed her 

section 271 motion.

Rick filed opposition, which included his own declaration. Rick took 

issue with Rhona’s claim he had engaged in obstructive conduct and 

maintained there was no basis to award sanctions. According to Rick, the 

parties had reduced litigation costs by reaching multiple stipulations, he had 

attempted to reach a settlement with Rhona but she took unreasonable 

positions, and any alleged discovery misconduct did not, in any event,

warrant sanctions. Rick also requested that the court defer the motion until

trial, so each side could fully present their case and the court could evaluate 

the totality of the parties’ conduct to determine whether sanctions were 

warranted. He did not, however, specifically request an evidentiary hearing 

3 We draw some of the background from our prior opinion in Rick’s 

appeal from an order interpreting the parties’ premarital agreement 

(Thompson v. Thompson (August 14, 2023, A164992) [nonpub. opn.]), of 

which we take judicial notice on our own motion. (Evid. Code, § 459.)
3

pursuant to section 217. Nor did he identify any witness(es) whose testimony 

he sought to elicit at such a hearing.

4

At the hearing on Rhona’s motion, the trial court stated it had read 

over 500 pages of pleadings, including the parties’ moving and opposing

papers and their declarations. For the first time, Rick requested an 

evidentiary hearing pursuant to section 217 and California Rules of Court, 

rule 5.113 (rule 5.113). He maintained the pleadings demonstrated that 

material facts were in controversy, which mandated a hearing to assess the 

parties’ credibility. Other than generally asserting the court needed to assess 

the credibility of “each party,” Rick did not identify whose testimony he 

sought at such an evidentiary hearing, nor did he make an offer of proof as to 

the parties’ supposed testimony.

At the conclusion of the hearing, the trial court stated the parties’ oral 

presentations were a “rehash” of what was in the pleadings, and it took the 

matter under submission to consider Rick’s belated request for oral testimony 

under section 217. 

Several weeks later, the court issued a written order granting Rhona’s

motion and ordering Rick to pay $300,000 in sanctions. The court found Rick 

had engaged in obstreperous and dilatory behavior that frustrated 

settlement, behaved in a manner that impeded communication, and failed to 

engage in good faith settlement discussions. It further found Rick had failed 

4 In his opposing memorandum, Rick did not cite to section 217, did not 

make any mention of testimony by or cross-examination of Rhona, and 

implied only that he desired to present his “side of the story.” He reiterated 

the latter point in his declaration, stating an evidentiary hearing was needed 

to “fully present [his] side of the story.” He did serve Rhona with a notice to 

appear pursuant to Code of Civil Procedure section 1987, but again made no 

reference to section 217. 
4

to timely pay the previously ordered discovery sanctions and his excuse for 

failing to do so was disingenuous.5 The court denied Rick’s request for an 

evidentiary hearing, concluding “that live testimony was not necessary to 

determine the credibility of the witnesses and that the pleadings and 

arguments by counsel were sufficient for the court to make its determination 

without need for an additional hearing. . . .” 

DISCUSSION

Applicable Law and Standard of Review

Section 271, subdivision (a) provides: “Notwithstanding any other 

provision of this code, the court may base an award of attorney’s fees and 

costs on the extent to which the 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. . . .” The statute “imposes a 

‘minimum level of professionalism and cooperation,’ to effect the policy 

favoring settlement of family law litigation—and a reduction of the attendant 

costs.” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1524.)

Section 217, subdivision (a) provides that at a hearing on a motion 

brought pursuant to the Family Code, the trial “court shall receive any live, 

competent testimony that is relevant and within the scope of the hearing and 

the court may ask questions of the parties.” However, “[i]n appropriate cases, 

a court may make a finding of good cause to refuse to receive live testimony 

5 Although Rhona also claimed Rick violated various temporary 

restraining orders, the trial court reserved those matters for trial. We 

express no opinion as to whether such conduct, if proven, would justify an 

award of sanctions under section 271.
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and shall state its reasons for the finding on the record or in writing.” (Id.,

subd. (b).) Rule 5.113 lays out factors for a court to consider in making a 

finding of good cause under section 217, including whether “a substantive 

matter is at issue,” “material facts are in controversy,” and “live testimony is 

necessary for the court to assess the credibility of the parties or other 

witnesses. . . .” (Rule 5.113(b)(1)–(3).) If the court finds “good cause to 

exclude live testimony, it must state its reasons on the record or in writing.

The court is required to state only those factors on which the finding of good 

cause is based.” (Rule 5.113(c).)

“Sanctions under section 271 are committed to the discretion of the 

trial court, and will be reversed on appeal only on a showing of abuse of that 

discretion, that is ‘only if, considering all of the evidence viewed more 

favorably in its support and indulging all reasonable inferences in its favor, 

no judge could reasonably make the order.’ ” (In re Marriage of Davenport, 

supra, 194 Cal.App.4th at p. 1524.) A court’s good cause determination under 

section 217 is also reviewed for abuse of discretion. (In re Marriage of Hearn

(2023) 94 Cal.App.5th 380, 390.) However, “ ‘[w]e review any factual findings 

made in connection with [a sanctions] award under the substantial evidence 

standard.’ ” (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1177.)

Refusal of Live Testimony

The trial court concluded “that live testimony was not necessary to 

determine the credibility of the witnesses and that the pleadings and 

arguments by counsel were sufficient for the court to make its determination 

without need for an additional hearing at a later date.” The court did not 

abuse its discretion in reaching such a conclusion.

At the hearing, the court advised the parties it had reviewed the

entirety of their submissions—which totaled more than 500 pages—and at 
6

the end of the hearing, it stated their arguments were a “rehash” of what was 

in those pleadings. These statements “notified the parties that the court was 

well-informed as to the relevant events and the parties’ positions” and

signaled “that the court was familiar with the facts and the arguments.” (In 

re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1132 [court impliedly 

concluded material facts were not in controversy and that live testimony was 

not necessary to assess the parties’ credibility]; see In re Marriage of Hearn, 

supra, 94 Cal.App.5th at p. 391 [no abuse of discretion where trial court

stated it had reviewed the parties’ submissions, was familiar with the case, 

and it determined the matter had been so exhaustively briefed that an 

evidentiary hearing would not give the court information not already 

included in the written submissions].)

Rick insists the trial court needed oral testimony for three reasons: a 

substantive matter was at issue; material facts were in dispute; and to assess 

the parties’ credibility.

Substantive Matter at Issue (Rule 5.113 (b)(1))

Requests for sanctions are not “ ‘substantive matter[s]’ ” under section 

217 and rule 5.113. (In re Marriage of Diamond (2021) 72 Cal.App.5th 595, 

605 (Diamond).) 

Rick claims, however, that “[s]ection 217 vested the trial court with the 

discretion to determine whether the issue was substantive or not and it found 

that it was.” He cites no authority for any such “discretion” on the part of the 

trial court. Nor does he cite to any such finding by the trial court here. 

Rather, he asserts “the absence of a finding in the court’s [order] that a 

substantive matter was not at issue means the court necessarily found 

Rhona’s sanctions request was a substantive matter.” Not surprisingly, Rick 

also cites no authority for this remarkable proposition.
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In short, there is no merit to Rick’s assertion that this factor entitled 

him to an evidentiary hearing with live witnesses. 

Material Facts in Controversy (Rule 5.113 (b)(2))

Rick maintains the material facts “were . . . hotly disputed.” He points 

out, for example, that Rhona claimed his attorneys were “purposefully 

uncommunicative,” but he averred his attorneys “consistently responded to 

Rhona where necessary and it was she, not him, who had been 

nonresponsive.” He points out Rhona claimed he had not made “good faith 

offers” in settlement negotiations, but he averred “the exact opposite,” that it 

was Rhona “who failed to negotiate settlement in good faith.”

However, what Rick is taking issue with are not the operative facts, but 

rather, conclusions that could be drawn therefrom. As to the operative facts, 

there appears to be very little dispute, and none that Rick demonstrates was 

material. 

Furthermore, even if the operative facts were in dispute, a trial court is 

not required to hear live testimony but can make findings based solely on the 

documentary evidence before it. (See Shamblin v. Brattain (1988) 44 Cal.3d 

474, 479 (Shamblin) [a trial court’s ability to “assess credibility and resolve 

any conflicts in the evidence” is entitled to great weight, and “appellate 

court[s] should defer to the factual determinations made by the trial court 

when the evidence is in conflict,” irrespective of “whether the trial court’s 

ruling is based on oral testimony or declarations”].)

Accordingly, Rick has not made a case of entitlement to an evidentiary 

hearing under this factor.

Parties’ Credibility (Rule 5.113 (b)(3))

Rick devotes most of his argument to the issue of witness credibility, 

insisting live testimony was required for the trial court to make the 
8

credibility calls purportedly underlying its findings against him. According 

to Rick this was “a classic case of ‘he said, she said’ ” that could only be 

resolved by the court considering live testimony and on that basis assessing 

the parties’ credibility.

To begin with, as we have recited, a live evidentiary hearing is not 

required for a trial court to assess credibility. It is well-established that a 

court sitting as a finder of fact can make credibility determinations on the 

basis of sworn declarations and other record evidence. (See Shamblin, supra, 

44 Cal.3d at p. 479; accord, Desert Outdoor Advertising v. Superior Court

(2011) 196 Cal.App.4th 866, 868, fn. 1 [appellate courts give deference to trial 

court’s credibility call whether based on oral or documentary evidence].) 

Furthermore, while Rick points to several supposed evidentiary 

disputes that purportedly turn on witness credibility which should have been 

assessed on the basis of live testimony, in fact, the operative facts are, again,

largely undisputed. 

For example, Rick points out Rhona submitted a copy of a text message 

wherein he stated, “I have told my attorneys I don’t want to hear from them 

but once a month.” He then points to his own declaration wherein he averred 

he is “in regular communication with” his attorneys, he knows “everything 

that has been going on” in the case, and his “attorneys consistently respond 

to opposing counsel in a timely fashion when and if necessary.” Rick did not, 

however, deny making the text statement. In fact, he conceded there were 

instances where his counsel did not respond to Rhona, stating that because “I 

choose not to pay my attorneys to respond to her unnecessary provocations,” 

“does not make me uncooperative or unreasonable.”

As another supposed example, Rick points to a dispute over the 

payment of taxes. Rhona proposed a stipulation regarding the filing of 
9

returns and payment of taxes, and two months later sent an updated 

proposal. Rick’s counsel did not respond to either. When Rhona’s counsel 

followed up, Rick’s counsel advised she had sent the stipulation on to Rick 

and was “awaiting his response.” When Rhona filed the instant motion for 

sanctions six weeks later, Rick’s counsel had yet to respond. And when 

Rhona filed her reply memorandum (five months after the updated 

stipulation had been sent to Rick’s counsel), Rick’s counsel still had not 

returned an executed stipulation. In his opposing declaration, Rick admitted 

he never signed the stipulation, but averred the taxes were paid from the 

sources and in the manner set forth in the stipulation, making the stipulation 

unnecessary. While the taxes may have gotten paid in the manner proposed 

by Rhona, this does not change the fact that Rick needlessly stonewalled 

Rhona and exhibited zero cooperation on this issue.

Rick also points to 14 stipulations he did agree to as exhibiting 

cooperation. However, Rhona declared that her attorneys proposed and 

drafted 11 of those stipulations, and her attorney had to repeatedly contact 

Rick’s counsel for responses. Nothing Rick says contradicts Rhona’s 

declaration.

Rick additionally points to the parties’ efforts to appoint a discovery 

referee as illustrative of an evidentiary conflict that should have been 

resolved on the basis of live testimony. Again, he vastly overstates any 

supposed conflict. Rhona proposed the parties appoint a referee, and she

averred in her declaration that Rick did not respond. In opposition, Rick 

declared, “contrary to Rhona’s assertions, we have now appointed a discovery 

referee.” It is true that by the time Rick filed his opposition, the parties had 

reached an agreement on a referee. It is also undisputed that Rick ignored 

Rhona’s proposal for four months. He responded only after being sanctioned 
10

in connection with a prior discovery dispute. Moreover, the parties could not 

agree on a referee until Rhona filed the instant motion for sanctions. In 

short, it is undisputed that one full year passed between Rhona’s suggestion 

to appoint a discovery referee and the appointment of a referee. 

In any case, even if Rick were correct in asserting the parties’ 

declarations conflicted “on almost every material fact,” he has not 

demonstrated that the trial court abused its discretion in concluding an 

evidentiary hearing was not required to assess credibility. The court

reviewed the pleadings and stated it was able to resolve any conflicts in the 

evidence. (See Shamblin, supra, 44 Cal.3d at p. 479.) Moreover, “[w]hen two 

or more inferences can reasonably be deduced from the facts, the reviewing 

court has no authority to substitute its decision for that of the trial court.” 

(Id. at pp. 478–479; see also In re Ana C. (2012) 204 Cal.App.4th 1317, 1329 

[even if we “could reasonably make a different assessment of credibility[, this] 

is not sufficient grounds for reversal”].) 

Due Process

We are also not persuaded by Rick’s assertion that section 271, when 

read in conjunction with section 217, and taking into account due process 

concerns, mandated live testimony and superseded any finding of good cause 

not to hold such a hearing. He has not cited, nor are we aware of, a single 

authority supporting such a construction of the statutes.

Sanctions may be awarded pursuant to section 271 “only after notice to 

the party against whom the sanction is proposed to be imposed and 

opportunity for that party to be heard.” (§ 271, subd. (b).) Rhona served her 

request for sanctions on Rick and he had an opportunity to respond and, 

indeed, did so both in writing and at the hearing. No additional process was 

required. (See Diamond, supra, 72 Cal.App.5th at p. 605.)
11

No Prejudice

Finally, even if we were to assume that the trial court abused its 

discretion in refusing Rick’s belated request for live testimony, Rick has

failed to show how he was thereby prejudiced. He made no offer of proof in 

the trial court as to what he or Rhona would have said on the witness stand,

either directly or on cross-examination. Accordingly, Rick cannot prevail on 

appeal. “ ‘To preserve an evidentiary ruling for appellate review, the 

proponent of the evidence must make an offer of proof regarding the 

anticipated testimony. [Citation.] The offer of proof must address the 

“substance, purpose, and relevance of the excluded evidence” (Evid. Code, 

§ 354, subd. (a)), and must set forth the actual evidence to be produced and 

not merely the facts or issues to be addressed and argued [citation]. . . .’

(People v. Carlin (2007) 150 Cal.App.4th 322, 334 . . .; see also In re Mark C.

(1992) 7 Cal.App.4th 433, 444 . . . [failure to make an adequate offer of proof 

precludes consideration of the alleged error on appeal].)” (Bowman v. Wyatt

(2010) 186 Cal.App.4th 286, 329; see Diamond, supra, 72 Cal.App.5th at 

p. 605 [husband did not identify testimony he would have elicited crossexamining wife “that would have had a bearing on the court’s decision”].)

Finding Regarding Prior Discovery Sanctions

The trial court found “that [Rick’s] failure to timely pay the previously 

ordered sanctions (based on the court’s failure to include a deadline for 

payment, despite the deadline to comply with the court’s companion order) to 

be disingenuous.” Rick maintains this finding is not supported by the record. 

We agree on this point.

In ruling on Rhona’s earlier motion to compel discovery responses, the 

court granted the motion and ordered Rick to provide amended discovery 

responses and within 30 days to pay $15,000 in sanctions. As it is 
12

undisputed Rick paid the sanctions within the 30-day deadline, the court’s 

finding is not supported by substantial evidence. However, while Rick timely 

paid the sanctions, he did not supply further discovery responses for another 

two months, taking almost three months to serve the responses. His 

explanation was that the court’s discovery order did not include a deadline for 

the further responses. Thus, it is possible the trial court was referring to this 

explanation in finding Rick to be “disingenuous.” But for better or worse, the 

court’s order specified a deadline only for the payment of sanctions not for 

service of the further discovery responses.

We cannot discern whether this finding impacted the amount of the 

sanctions award. As Rick points out, the amount of section 271 sanctions 

must be tied to the amount of attorney fees and costs the moving party 

incurred because of the obstructive behavior. In other words, the trial court 

cannot award an amount that simply seems a fair penalty for the misconduct. 

(Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1152–1156.) We shall 

therefore remand for the limited purpose of having the trial court determine 

whether the amount of the sanctions awarded included attorney fees incurred 

in connection with purported delay in paying the discovery sanctions and, if 

so, reducing the amount of the 271 sanctions accordingly. 

DISPOSITION

The order dated December 2, 2021, is REVERSED in part and the 

matter is remanded for the limited purpose of having the trial court 

determine whether the amount of the sanctions awarded included attorney 

fees incurred in connection with purported delay in paying the discovery 

sanctions and, if so, reducing the amount of the 271 sanctions accordingly. 

The order is otherwise AFFIRMED. Parties to bear their own costs on 

appeal.
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_________________________

Banke, J.

We concur:

_________________________

Margulies, Acting P.J.

_________________________

Getty, J.*

**Judge of the Solano County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.

A164210, Thompson v. Thompson