Family Law Tentative Rulings - Courtroom 20

The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact the Judicial Assistant by telephone at (707)-521-6836 by 4:00 p.m. on the day before the hearing. Any party requesting an appearance must notify all other opposing parties of their intent to appear.

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1.  SFL 085896 MOULTON/BOWNE DISSOLUTION

TENTATIVE RULING:

Motion for Attorney’s Fees and Costs DENIED.

Facts

Petitioner filed this action for dissolution of marriage without minor children on June 1, 2020.  Among other things, the petition seeks determinations of separate and community property.  No further activity occurred until Respondent filed his response on January 10, 2024.  The response likewise seeks determinations of separate and community property.

Following the response, only inconclusive activity occurred until a court hearing on December 20, 2024, at which the court heard two motions.  One motion was Respondent’s motion to bifurcate trial into three phases: 1) determine validity of the Premarital Agreement (the “PMA” or “Agreement”) and the Amendment to Premarital Agreement (the “Amendment”); 2) issues of date of separation; and 3) enforcement of the PMA and Amendment to facilitate division of assets and debts.  The court granted the motion as to bifurcating the issue regarding the validity of the PMA and Amendment but otherwise denied the motion.  The other motion was Petitioner’s motion for protective order in which she sought a protective order regarding Respondent’s discovery regarding a co-op real property in which the parties had an interest in New York (the “New York Property”).  She also sought to stay litigation in this action over the New York Property, with this court reserving jurisdiction over those issues in the event that the New York Property issues are not resolved in the pending New York action.   The court granted the motion for the protective order on the basis that there appeared to be no dispute that the interests in the New York Property were separate property, the New York Property was the subject of a separate pending litigation in New York, and the issues regarding that property were therefore outside the scope of this litigation.  The court added, however, that the court would consider the issues again should either party later demonstrate that there is in fact a legitimate dispute about the nature of the interests in the New York Property or should the New York action not resolve the issues regarding the parties’ interests in that property. 

Litigation since the December 20, 2024 hearing has been inconclusive.  Although trial had been set for October 2025, it was cancelled.  A trial setting conference to determine trial readiness is set for February 6, 2026. 

The parties have continued to litigate over discovery issues, including several motions to quash deposition subpoenas which are still pending.

On July 22, 2025, meanwhile, Respondent filed a Request for Order and Motion for Attorney’s Fees and Costs (the “Fees Motion”), moving the court to order Petitioner to contribute $300,000 towards his legal expenses based on his claims of financial disparity between the parties pursuant to Family Code section 2030.  The court heard the motion on October 16, 2025.  In light of Petitioner’s arguments that the parties’ Pre-Marital Agreement (“PMA”) requires the parties to bear their own legal expenses, the court continued the Fees Motion and ordered the parties to file supplemental briefing on the PMA’s effects on the request for legal fees.

At the hearing on January 22, 2026, which was scheduled to cover several issues, the court continued Respondent’s motion for attorney’s fees again, to February 6, 2026, in order for the court to fully consider the parties’ supplemental briefing regarding the effects of the PMA on the motion for attorney’s fees.  Both parties were present at the hearing.

Motion

Respondent moves the court to order Petitioner to contribute funds to cover his attorney’s fees and costs due to the financial disparity between the parties pursuant to Family Code section 2030.

Petitioner argues that section 28 of the PMA bars the requested relief.

Applicable Authority

According to the Family Law Rules of the California Rules of Court (“CRC”) 5.2(d), and Family Code section 210, provisions applicable to civil actions generally apply to proceedings under the Family Code unless otherwise provided.  This includes the rules applicable to civil actions in the California Rules of Court and the Code of Civil Procedure (“CCP”), and specifically proceedings pursuant to the Civil Discovery Act set forth at CCP section 2016.010, et seq.  See, e.g., In re Marriage of Boblitt (2014) 223 Cal.App. 4th 1004, at 1022.

Fam. Code section 2030 states that the court must ensure that each party has access to legal representation by ordering, if necessary, one party to pay the other party or attorney reasonable attorney’s fees and costs for maintaining or defending the proceedings.  The court must make findings as to whether the award is appropriate, whether there is a disparity in access to funds, and whether one party is able to pay for the legal representation of both.  It allows recovery of such litigation expenses in the family-law action and any other “related” action.

Effect of The PMA

There is no dispute about the fact that the parties entered into the PMA and there is no dispute about the language of its terms, specifically section 28, on which Petitioner relies.  Respondent himself in his moving papers acknowledges that the parties entered into it and that it contains the language in section 28 and both parties are in agreement on these points.  They differ in the application of section 28 to this motion. Section 28 states, in full,

FUTURE ATTORNEY FEES AND COSTS RELATED TO

AGREEMENT. If either party reasonably retains counsel for the

purpose of enforcing or preventing the breach of any provision of

this agreement, for damages by reason of any alleged breach of any

provision, for a declaration of his or her rights of obligation under

the agreement, or for any other judicial remedy, each party

(whether at trial or on appeal) shall pay his or her own respective

attorney fees and costs and shall have no right to obtain payment of

these attorney fees and costs from the other part.

This litigation is focused on the Amendment to the PMA.  The Amendment refers to the PMA and states that it “governs, inter alia, how respective interests in real property are to be treated.”  It also states that the parties were then under contract to buy the New York Property with an anticipated loan and security agreement, Respondent was anticipated to be the only party to execute the loan for the New York Property but both may execute the security agreement, and both would be owners of the “cooperative entity” and named on the lease.  It adds that the parties wanted “to set forth their rights and obligations specifically with regard to the Co-op” and sets forth details of funds, interests, and liabilities regarding the New York Property, as well as indemnification regarding such financial matters and obligations. 

For the purposes of this motion, the Amendment includes provisions regarding its application and its relationship to the Agreement.  It states, “Except as set forth herein, Article 11 of the Pre-Marital Agreement shall govern the respective interests of the parties in and to the Co-op.”  It adds that funds which Petitioner has paid towards the New York Property shall be considered contributions in accordance with Article 11 of the PMA while Respondent’s payments are to  be considered “made in accordance with the PreMarital Agreement and this Agreement,” and that Petitioner’s indemnification obligation to Respondent shall not alter interests in the New York Property through his payment of anything “arising out of the ownership of the Co-op and all items delineated in Article 11.01 of the PreMarital Agreement.”  It adds, “This Agreement, together with the PreMarital Agreement contains the entire understanding of the parties and there are no representations, warranties, covenants or undertakings other than those set forth herein or in the PreMarital Agreement.”  The Amendment also states that it is to be construed in accordance with the laws of the State of New York.

The PMA, unlike the Amendment, states that it is to be governed and construed by, and in accordance with, California law.  Article 11, the one part of the PMA which the Amendment mentions and states applies, generally governs contributions of separate and/or community property to property in joint names.  It sets forth terms regarding the allocation and definition of such interests.

Ultimately, in the course of the prior hearings and all of the briefing, the crux of the argument on this motion has boiled down to whether section 28 of the PMA applies to the Amendment.  As Respondent argues, this current litigation is with respect to the Amendment and the New York Property and Petitioner does not appear to dispute this point.  Respondent’s ultimate argument is that because the litigation is about the Amendment specifically, the PMA terms and specifically section 28 do not apply.  Petitioner contends that, although the dispute is about the terms of the Amendment, the PMA and specifically section 28 apply to the Amendment.  She argues, in her latest supplemental brief, her Opposition to Respondent’s Supplemental Memorandum of Points and Authorities Regarding PMA Section 28 (“Supp. Oppo”), which she filed on January 9, 2026, that “the straightforward question before the Court” is “does Section 28 of the [PMA] apply to claims arising out of the [Amendment], where the Amendment expressly incorporates the PMA’s terms?  The answer is yes.”  Supp. Oppo 2:3-7. 

Analysis of the other arguments regarding the application of section 28 to this motion, primarily the focus of the parties’ earlier briefs, underscores the end result of the parties’ final briefs, that the issue comes down to whether section 28 of the PMA applies to the Amendment.  

Preliminarily, Petitioner is unequivocally correct that parties may waive the right to need-based attorney’s fees obtainable pursuant to Fam.Code section 2030 and Respondent does not dispute this basic proposition.  The court in Marriage of Guilardi (2011) 200 Cal.App.4th 770, at 773-776, found that a marital settlement agreement implicitly waived any claims other than those available to the prevailing party, and thus barred recovery of need-based pendente lite fees under section 2030 to a party who had unsuccessfully challenged the MSA’s validity.  Similarly, in Marriage of Nassimi (2016) 3 Cal.App. 5th 667, at 683-684, 697-698, the court found that the parties entered into an agreement applying the prevailing- party standard in lieu of the ability to obtain need-based fees under section 2030.  

Respondent, on the other hand, has correctly asserted that PMA section 28 does not necessarily apply to prohibit an award of need-based legal expenses regarding marital dissolution under section 2030.  As Respondent argues, Guilardi involved a marital settlement agreement and the litigation at issue was a motion to set aside that MSA.  In the court’s words, at 775,

Here the parties' agreement stated: “If either party brings an action or other proceeding to enforce this Agreement, or to enforce or modify any judgment or order made by a court in connection with this Agreement or to obtain any judgment or order relating to or arising from the subject matter of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees and other costs from the other party as established by the court of competent jurisdiction.” The agreement also states its purpose at the outset, including the parties' intent to “[r]elinquish any and all past, present, and future claims that each may have against the property or estate of the other party....” We agree with the lower court that this language broadly encompasses claims either party might bring against the other (or against that person's estate) arising out of the agreement. … Wife's challenge to the validity of the agreement had already been found to be without merit… and there was no exception… precluding its enforcement.

Respondent persuasively argues that section 28 on its face does not apply to all actions or litigation involving, or arising from, the marriage or dissolution of the marriage.  It only applies to legal expenses incurred for the “purpose of enforcing or preventing the breach of any provision of this agreement, for damages by reason of any alleged breach of any provision, for a declaration of his or her rights of obligation under the agreement, or for any other judicial remedy….”  The first portion of this language, therefore, expressly limits its application to legal expenses incurred regarding the breach of the PMA or a declaration of rights under the PMA.  The last part, “for any other judicial remedy,” appears to be limited by the first portion and merely to mean any other judicial remedy in the context of disputes over the breach or rights under the PMA.  

Section 28 is accordingly limited to legal expenses incurred regarding breach and rights related to the PMA.  However, both parties are clear, and Respondent himself expressly argues, that this current litigation is specifically regarding the Amendment; it is not about unrelated marital issues or broad dissolution litigation.  The result is that, as both parties appear to recognize, the real issue is whether section 28 of the PMA applies to litigation over the Amendment, rendering disputes about the broader application of section 28 irrelevant.    

Respondent argues that “[u]nder New York law, courts are reluctant to imply attorney’s fee waivers in premarital or marital settlement agreements.”  Respondent’s Supplemental Reply MPA filed January 9, 2026 (“Supp. Reply”).  This argument is not persuasive here.

Respondent’s cited authorities add nothing material to, and do not significantly alter, the analysis.  He cites to Ader v. Ader 205 A.D. 3d 637, 170 N.Y.S.3d 22 (1st Dep’t 2022) for the proposition that a fee-waiver provision in a prenuptual agreement did not apply to matters outside the scope of that agreement.  This is a logical standard and basically consistent with California law, as set forth in Guilardi.  He also relies on McKenna v. McKenna, 121 A.D.3d 864, 994 N.Y.WS.2d 381 (2nd Dep’t 2014) for the assertion that agreements waiving counsel fees must be specific to exactly what the parties are intending to waive and that an agreement containing a general waiver of counsel fees is insufficient to waive a temporary or interim award of such fees.  In that action, there was apparently a dispute about the contractual obligation regarding fees under the premarital settlement agreement. 

Finally, Respondent’s cited New York authority on implying a waiver of a potential right to attorney’s fees is ultimately immaterial.  Both parties agree that there is no dispute that although New York law controls the interpretation and application of the Amendment, California law expressly applies to the PMA.  The PMA is clear on that point.  Therefore, in the court’s view, New York law is only applicable to the actual terms of the Amendment, those regarding the New York Property, the parties’ rights and obligations for that property, and its relationship to the PMA.  For the purposes of the pending motion, that it is the limit of the application of New York law.  The Amendment says nothing about attorney’s fees or costs, which is why the argument here revolves around the application of section 28 of the PMA.  Since California law governs the PMA, it governs the interpretation and application of section 28 and, therefore, the effect of section 28. 

Moreover, section 28 is not an implicit waiver of recovery of those legal expenses to which it applies but an express one.  It expressly states that, for legal expenses falling within its ambit, “each party… shall pay his or her own respective attorney fees and costs and shall have no right to obtain payment of these attorney fees and costs from the other party.”  This is an express statement and its language on its face is clear.  It does not expressly mention or waive any specific statutory basis for fees or costs, and does not specifically waive need-based fees, but that does not make the waiver of fees implied.  It is an express overall waiver of all right to obtain any fees and costs from the other party and in that sense, it is very express and very clear on its face.    

Once again, this leaves the court with determining whether section 28 of the PMA applies to disputes regarding the Amendment.  Despite his assertions that this litigation focuses on the Amendment, Respondent’s arguments do little to address this issue and he primarily simply asserts that the Amendment does not expressly incorporate the terms of the PMA as a whole, or section 28.  Petitioner, for her part, asserts that “the Amendment expressly incorporates the PMA into its terms” and that because the Amendments lacks any provision “analogous” to section 28, PMA section 28 applies.         

On this issue, Petitioner’s argument is in section II.b. at Supp. Oppo 4:20-5:4.  She argues that under New York law, as set forth in Gizara v. New York Times Co., 1028, 915 N.Y.S.2d 379, at 382 (2011), a contractual amendment is a new agreement supplanting the affected provisions of the underlying agreement while leaving the balance of its provision unchanged.  The court in Gizara stated, ‘when a “contract has been materially modified, the modification establishes a new agreement between the parties which supplants the affected provisions of the underlying agreement while leaving the balance of its provisions unchanged” [Citation.]’ Similarly, the court in Cortesi v. R & D Constr. Corp., 524 N.Y.S.2d 874, at 875 (1988), found that where parties modified an existing contract the terms which the modification did not alter remained in effect.  Respondent does not dispute this.

Respondent is correct that the Amendment does not expressly state that the terms of the PMA as a whole, or the terms of section 28 specifically, apply to, or are incorporated in, the Amendment.  The Amendment only specifically discusses section 11 of the PMA and does not include any express language incorporating any terms of the PMA. 

However, the analysis does not end there.  The Amendment is clear that it is not a stand-alone agreement but is an amendment to the PMA.  In addition, its WHEREAS terms state that the PMA is attached as Exhibit A, that the parties are under contract to purchase an interest in real property, and that the PMA “governs, inter alia, how respective interest in real property are to be treated.” Section 1 of the Amendment states that the WHEREAS clauses are incorporated and the PMA as a whole sets forth the parties’ interests in a specific piece of real property. This indicates that the Amendment is to be construed as part of the PMA and that those terms of the PMA which are outside the scope of the specific topics of the Amendment will apply to the Amendment.  The Amendment’s discussion of PMA section 11 is consistent with this because the subject of the Amendment is a specific parcel of real property and PMA section 11 governs the parties’ rights regarding real property in general.  Had the Amendment merely included its language regarding PMA section 11 but otherwise indicated that it was a separate, stand-alone agreement, then the conclusion would be different.  But here, given that the Amendment expressly is an amendment to the PMA, and contains no language excluding or altering the application of PMA terms, including section 28, the inescapable conclusion is that section 28 of the PMA applies to the Amendment.  

Finally, Respondent argues that Petitioner cannot rely on section 28 of the PMA while challenging enforceability of the Amendment, but this argument is not persuasive.  Respondent relies on equitable estoppel as set forth in Goldman v. KPMG, LLP (2009) 173 Cal.App.4th 209, at 220, but this provides no support. 

The court in Goldman was addressing whether a party who was seeking to enforce an agreement against a non-signatory could refuse to comply with the arbitration provision covering that very agreement.  It explained, if a plaintiff relies on the terms of an agreement to assert his or her claims against a nonsignatory defendant, the plaintiff may be equitably estopped from repudiating the arbitration clause of that very agreement. In other words, a signatory to an agreement with an arbitration clause cannot “ ‘have it both ways' ”; the signatory “cannot, on the one hand, seek to hold the non-signatory liable pursuant to duties imposed by the agreement, which contains an arbitration provision, but, on the other hand, deny arbitration's applicability because the defendant is a non-signatory.”

It also set forth the basis rationale of equitable estoppel, stating, ‘Equitable estoppel generically “ ‘precludes a party from asserting rights “he otherwise would have had against another” when his own conduct renders assertion of those rights contrary to equity.’ ” ’  In other words, the court explained that a party relying on the terms of an agreement to hold another liable under it may not repudiate the arbitration clause in that agreement and thus avoid the applicable of the agreement to that party.

Here, however, Petitioner is not trying to rely on terms which she is repudiating or claiming are invalid or inapplicable.   She is challenging the Amendment but relying on section 28 of the PMA.  She is not repudiating, or trying to avoid application, of the PMA or section 28.  The Amendment was also agreed to later, as a separate transaction and simply added to the PMA.  Finally, section 28 of the PMA itself on its face encompasses the very assertion that the Amendment is not enforceable.  Once again, it states, with emphasis added,

FUTURE ATTORNEY FEES AND COSTS RELATED TO

AGREEMENT. If either party reasonably retains counsel for the

purpose of enforcing or preventing the breach of any provision of

this agreement, for damages by reason of any alleged breach of any

provision, for a declaration of his or her rights of obligation under

the agreement, or for any other judicial remedy, each party

(whether at trial or on appeal) shall pay his or her own respective

attorney fees and costs and shall have no right to obtain payment of

these attorney fees and costs from the other part.

The arguments about the enforcement of the Amendment, including Petitioner’s position that it is not enforceable, fall within its coverage of legal expenses for “enforcing or preventing the breach of any provision of this agreement” as well as “for a declaration of his or her rights of obligation under the agreement, or for any other judicial remedy….” 

Conclusion

The court DENIES the motion for the reasons set forth above.  The prevailing party shall prepare and serve a proposed order consistent with this tentative ruling within five days of the date set for argument of this matter. Opposing party shall inform the preparing party of objections as to form, if any, or whether the form of order is approved, within five days of receipt of the proposed order. The preparing party shall submit the proposed order and any objections to the court in accordance with California Rules of Court, Rule 3.1312.

[END OF PROPOSED TENTATIVE.]