Elizabeth N. Niemi Attorney Fraud on the Court - Malpractice - State Law Violations Sacramento by Dylan Smith

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Cited As of: Feb 20, 2015 In re the Marriage of MAUREEN J. DURIS and WILLIAM AUGUST URBANY. MAUREEN J. DURIS, Appellant, v. WILLIAM AUGUST URBANY, Respondent. B222002 COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION SIX 193 Cal. App. 4th 510; 123 Cal. Rptr. 3d 150; 2011 Cal. App. LEXIS 275

March 14, 2011, Filed PRIOR-HISTORY: Superior Court County of Santa Barbara, No. 1112027, Colleen K. Sterne, Judge.

William August Urbany, in pro. per., for Respondent. JUDGES: Opinion by Gilbert, P. J., with Yegan and Coffee, JJ., concurring.

HEADNOTES-1 OPINION BY: Gilbert CALIFORNIA OFFICIAL REPORTS HEADNOTES (1) Costs ยง 11--Sanctions--Notice and Hearing Requirement--Opportunity to Present Evidence.--The trial court erred in awarding attorney fees as sanctions against a former wife because (1) there was no notice that sanctions were an issue at a child support modification hearing, (2) there was no hearing on sanctions, and (3) there was no evidence to support the findings on the award of attorney fees. [Cal. Forms of Pleading and Practice (2010) ch. 226, Dissolution of Marriage: Attorney's Fees, ยง 226.12; 11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, ยง 10.] COUNSEL: Vanessa Kirker Wright for Appellant.

OPINION GILBERT, P. J.--Summary proceedings are common in family law cases. Nevertheless, however certain a court may be that a party or an attorney in a family law proceeding deserves sanctions, it must keep in mind an immutable principle that cuts across all areas of the law: sanctions may not be summarily imposed. Due process demands more. Petitioner Maureen J. Duris appeals a postjudgment order requiring her to pay $10,000 to respondent William August Urbany as sanctions for unnecessary litigation filed by Duris's former attorney in this dissolution of marriage action. We conclude, among other things, that the trial court erred by (1) awarding sanctions without

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first giving advance notice to Duris that sanctions were an issue at a child support modification hearing, and (2) not affording Duris a hearing to present evidence to contest the imposition of sanctions and the amount of the fees. We reverse and remand for a new hearing. FACTS Duris filed a petition for dissolution of her marriage to Urbany. On June 2, 2004, the trial court entered a judgment of dissolution. The court subsequently ordered the custody of their two children to be shared by Duris and Urbany. On January 29, 2009, Duris filed a motion to modify the shared custody order. She sought "100% physical and legal custody" of her two sons and increased child support. Urbany filed an opposition. Duris represented herself, but on September 8, 2009, she substituted Jacqueline Misho as her attorney. Misho commenced discovery and filed a motion to compel Urbany to produce documents. The trial court denied the motion. It ordered the parties to meet and confer to complete discovery. On November 16, 2009, Duris substituted herself in place of Misho. On November 23, 2009, the trial court held a hearing on Duris's custody and support motion. At the beginning of this proceeding, it described the issue to be decided as "modification of child support." After the completion of the testimony on the child support issues, the court said it would impose $10,000 in sanctions against Duris because of "unnecessary legal activity" filed by Misho. The court referred to Misho's prior motion to compel as a "fee sink" that "nonetheless required response on the other side." It said, "And for that reason of the approximately $25,000 that Mr. Urbany has expended in attorney's fees to date, I'm going to order Ms. Duris to absorb $10,000." Duris told the trial court that she was an unemployed attorney, trying to find a job, and could not pay $10,000 and support her children. She said, "How am I being penalized for hiring [Misho]? How was I supposed to know? I thought she was the best there was." The court did not take evidence on the sanctions and attorney fee issues. DISCUSSION

Notice, Hearing and Evidence for Findings Duris contends the trial court erred in awarding attorney fees as sanctions because (1) there was no notice that sanctions were an issue at the child support hearing, (2) there was no hearing on sanctions, and (3) there was no evidence to support findings on the award of attorney fees. We agree. Notice The trial court awarded attorney fees as sanctions against Duris because of the conduct of her prior attorney. But "for awards based principally on the wrongful conduct of a party or attorney, notice and a hearing [are] required before sanctions may be imposed." (In re Marriage of Hublou (1991) 231 Cal.App.3d 956, 964-965 [282 Cal. Rptr. 695].) "[N]otice prior of imposition of sanctions is mandated not only by statute but also by the due process clauses of both state and federal Constitutions." (In re Marriage of Fuller (1985) 163 Cal.App.3d 1070, 1077 [210 Cal. Rptr. 73].) Here there was no advance notice on the issue of sanctions. The trial court summarily awarded them because of actions involving a prior proceeding in this case. But this hearing involved a different issue. Duris filed a motion to modify child support. In his response, Urbany could have raised attorney fees and sanctions as an issue if he had completed the information on point 15 of the income and expense declaration form (Judicial Council form FL-150). But he did not fill out that portion of that document and he never filed a notice of motion for sanctions for the November 23 hearing. The court's minute orders describe the hearing only as a motion to modify child support; there is no reference to sanctions. At the beginning of the hearing, the court said the issue was child support; it did not mention sanctions. Consequently, Duris had no warning that this issue would be decided. "[C]ase authority condemns imposition of sanctions without prior notice." (In re Marriage of Fuller, supra, 163 Cal.App.3d at p. 1078.) Hearing Duris was not provided a hearing on sanctions. The trial court first raised the sanctions issue during closing arguments after it had completed the evidentiary hearing on support modification. It then summarily imposed sanctions finding that Misho's motion to compel discovery was unnecessary litigation. Duris was at a

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substantial disadvantage because the court raised the issue about Misho's conduct when Misho was not present. Because Duris appeared in propria persona and had no prior notice, she had no opportunity to subpoena Misho to explain the reasons for filing the discovery motion. Facts known by Misho were relevant. As Duris's counsel, Misho was legally responsible for developing the discovery strategy the court was challenging. (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 138 [95 Cal. Rptr. 3d 799].) Whether Misho reasonably believed that the discovery motion might lead to admissible evidence is an important factor in deciding whether sanctions are appropriate. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013 [105 Cal. Rptr. 2d 115].) Misho and Duris had no forum to present opposition evidence. In a proceeding to determine whether an attorney's conduct justifies sanctions, there must be a sufficient opportunity to present opposing evidence. (In re Marriage of Quinlan (1989) 209 Cal.App.3d 1417, 1422 [257 Cal. Rptr. 850]; see also Lesser v. Huntington Harbor Corp. (1985) 173 Cal.App.3d 922, 933 [219 Cal. Rptr. 562] [two days' notice for a sanctions hearing is insufficient time to prepare declarations showing that litigation was filed in good faith].) Duris had no time to file declarations, and Misho was denied an opportunity to challenge the accusation against her and defend her reputation. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 652 [183 Cal. Rptr. 508, 646 P.2d 179] [sanctions determination may harm attorney's professional reputation]; see also Annex British Cars, Inc. v. ParkerRhodes (1988) 198 Cal.App.3d 788, 793 [244 Cal.Rptr. 48] ["it is basic that counsel must have the opportunity to be heard on the issue before sanctions can be imposed"].) As Duris correctly notes, a hearing would also assist the trial court in determining who should pay the sanctions and the size of the award. The court may decide that (1) the attorney who filed the challenged litigation should pay (In re Marriage of Quinlan, supra, 209 Cal.App.3d at p. 1422), or (2) the amount of sanctions should be "scaled to the payor's ability to pay" (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 828 [79 Cal. Rptr. 3d 588]). Here the court acknowledged that Duris was not working. Duris's claim that paying $10,000 would hamper her ability to support her children is a factual issue that cannot be decided during the brief colloquy of a closing argument. (In re Marriage of Fuller, supra, 163 Cal.App.3d at p. 1078; In

re Marriage of Flaherty, supra, 31 Cal.3d at p. 652.) Findings and Evidence Urbany suggests that the trial court's findings on attorney fees are supported by evidence in the record. Duris disagrees. She claims the court acted without taking evidence and that Urbany's appellate brief does not comply with the rules of court. She is correct. Duris prepared a two-volume appellant's appendix. Urbany does not challenge the completeness of it or cite to a single document in it. Most of the factual assertions in his brief involve allegations against Duris that are not accompanied by any citations to the record. (Crestmar Owners Assn. v. Stapakis (2007) 157 Cal.App.4th 1223, 1232 [69 Cal. Rptr. 3d 231] [appellate courts are not required to consider issues that are not supported by references to appropriate authority and citations to the record].) Even so, Duris's claims also are well taken on the merits. The trial court said Urbany "expended" $25,000 in attorney fees, and consequently Duris should "absorb" $10,000 of that sum. But Urbany does not cite any evidence in the record to support the finding that he incurred or paid $25,000 to his attorney. Paul Capritto, Urbany's counsel, filed a trial brief on the day of the hearing. In a passing comment in that brief, he requested the court award $25,000 in attorney fees. A closing brief is not a proper method to seek sanctions. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 369 [50 Cal. Rptr. 3d 398].) The allegations of a brief are not evidence and a brief is not a sworn document. (In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1222, fn. 5 [87 Cal. Rptr. 2d 339].) Capritto did not testify. He did not file a declaration setting forth his hours, his hourly rates, a description of his services, or what Urbany paid as fees. Urbany's income and expense declaration sets forth no amounts incurred as fees. The absence of evidence "disclosing the nature and extent of counsel's services" hampered the trial court's ability to make fact findings. (In re Marriage of Cueva (1978) 86 Cal.App.3d 290, 303 [149 Cal. Rptr. 918].) It could not impose monetary liability based on speculation or on opposing counsel's unsworn statements. (In re Marriage of Reese & Guy, supra, 73 Cal.App.4th at p. 1222, fn. 5.) "Without ascertaining whether or at what hourly rate the work for which reimbursement was sought was actually done, much less that the work was 'reasonably necessary' ... , the trial court could not

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properly find that imposing" liability for the other spouse's legal fees was appropriate. (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 869 [89 Cal. Rptr. 2d 525].) Duris was prevented from presenting evidence to challenge the basis for the award, the reasonableness of the fees and the hourly rates. This summary imposition of attorney fees as sanctions is not consistent with due

process procedural protections. (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 652.) The order requiring Duris to pay $10,000 is reversed. The matter is remanded to the trial court with instructions to conduct a new hearing with proper notice. Costs on appeal are awarded in favor of appellant. Yegan, J., and Coffee, J., concurred.

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Paula Salinger Charged with Obstruction of Justice Crimes by Family Court Watchdog Sacramento Divorce Attorney Paula Salinger Accused of Criminal Acts Against Domestic Violence Victim. By Cathy Cohen (Open Post)

 July 14, 2014 at 4:46pm 

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Implicated in Unsettling New Report from Sacramento Family Court News

Whistleblower leaked records from a Sacramento Family Court case indicate that criminal acts were committed by family law attorney and temporary judge Paula Salinger against an indigent, unrepresented, pro per family court party. The pro per was a victim and witness in a family court criminal contempt case filed against a Salinger client, and the pro per also is a domestic violence victim, according to court records. Family court reform advocates say the case is another example of the complete lack of oversight and accountability of attorneys who engage in egregious misconduct against disadvantaged, pro per litigants who can't afford legal representation. As Sacramento Family Court News previously reported, Salinger has been caught in several scandals including filing counterfeit documents in court, violating state laws and

court rules, illegally attempting to obtain a final divorce judgment while an appeal in the same case was pending, and

obtaining a questionable waiver of the requirements to become a temporary judge.

Attorney Collusion with Judge Matthew J. Gary Documented by Court Records

Salinger also obtained from controversial Judge Matthew Gary an illegal order for more than $10,000 in attorney fee sanctions against the same contempt and domestic violence

victim. To benefit Salinger, Gary also illegally attempted to use fee waiver law to obstruct an appeal of several orders he issued for Salinger in the same case. Salinger's firm, Woodruff, O'Hair, Posner & Salinger Inc., previously was sued for legal malpractice in a case alleging more than $1 million in damages. The new, criminal allegations first surfaced last month on social media, including Facebook and Twitter, where several posts linked to supporting documents posted at Docstoc and

Calameo. Due to the serious nature of the claims, SFCN did not report on the assertions pending authentication of the records. SFCN has now verified the accuracy of the documents and posted the complete set at our Scribd account. The Scribd document set also is embedded with the original article at Sacramento Family Court News.

Obstruction of Justice Crimes

The records indicate that Paula Salinger, a Sacramento County Superior Court sworn temporary judge and officer of the

Sacramento Bar Association Family Law Executive Committee violated California Penal Code sections prohibiting witness intimidation and deceit of a witness. Under California law, both offenses are designated as obstruction of justice crimes. The circumstances also reveal new collusion between Salinger and Judge Matthew Gary. As reflected by page one of the document set posted at Scribd and SFCN, at an unrelated court hearing held three weeks before the date calendared for the contempt case, in open court Gary disclosed to Salinger that he would deny the contempt claims, even though Salinger had yet to file a response to the contempt pleading. Salinger then

used the unlawful disclosure in a threatening letter to the unrepresented opposing party: "As the court indicated at the hearing on October 27, 2010, your Order to Show Case (sic) Re: Contempt does not contain sufficient factual basis to sustain the contempt. At the hearing on November 17, 2010, I intend to request the court dismiss the matter and order sanctions pursuant to Family Code section 271 for proceeding with the contempt... ...Should you provide written proof (a copy of a confirming letter to the court) by Monday, November 1, 2010 at 5:00 p.m. that the above matters have been dropped, I shall withdraw my requests for sanctions pursuant to FC § 271," Salinger wrote in a letter to the contempt victim and witness. Page one of the document set posted at Sacramento Family Court News is an authenticated copy of the threatening letter.

Contempt Filing Against Salinger Client Triggers Criminal Acts

The alleged criminal acts were committed after the indigent, unrepresented pro per filed a criminal contempt of court allegation against a Salinger client. The contempt filing charged several violations of the Standard Family Law Restraining Orders, which are issued in all divorce proceedings. SFLRO's are automatically ordered against both parties when a dissolution of marriage is initiated in family court. As page one of the document set posted at SFCN reflects, Salinger illegally threatened the victim and witness with financial harm in the form of attorney fee sanctions if they did not drop the criminal contempt case. As page three and four reflect,

Salinger concurrently filed an illegal responsive declaration in the contempt case with a demand for $1,000 in attorney fee sanctions against the contempt victim and witness. As the page two legal reference reflects, under California law the response to a contempt allegation may only be used to answer the contempt charge, or move to discharge the contempt on appropriate grounds. Requesting "affirmative relief," including attorney fee sanctions, in response to a contempt allegation is prohibited by law. As page five of the document set indicates, Salinger's threat coerced the victim and witness to drop the contempt matter.

Witness Intimidation - Influencing a Witness by Fraud

As reflected by pages 6-16 of the document set posted at SFCN and Scribd, Penal Code §133 makes it a crime to use fraud or deceit to affect the testimony of a victim or witness. Penal Code §§136.1(a) & (b) make it a crime to maliciously prevent or discourage a witness or victim from giving testimony at a judicial proceeding. Salinger has not been charged with either crime, disciplined by the State Bar, Supreme Court or Judicial Council, or otherwise held accountable for the misconduct. Pro per advocates call the absence of accountability more proof that attorneys are effectively immune from punishment for

egregious misconduct against unrepresented pro pers who can't afford a lawyer, and make up 70 percent of family court litigants. Civil law statutes, including wrongful use of civil proceedings,

and abuse of process may also apply to Salinger's lawbreaking acts. SFCN is completing an in-depth investigative report on the criminal contempt incident and other troubling proceedings and documents from the same case. The report will be published by SFCN in the near future. Family court reform advocates say the latest revelations are additional proof that the court operates effectively as a

racketeering enterprise that deprives the public of the federally protected right to honest government services. Court watchdogs assert and have documented that judge pro tem attorneys receive kickbacks in the form of rubberstamped orders and other preferential treatment from family court judges and employees. The divorce lawyers who also hold the Office of Temporary Judge operate the family court settlement conference program in exchange for the kickbacks and emoluments, watchdogs charge. California Penal Code § 94 makes receipt of an emolument by a judicial officer a crime, and several federal criminal statutes prohibit similar conduct. The 2014 documentary film Divorce Corp designates Sacramento Family Court as the most corrupt in the United States. For our complete coverage of the movie, click here.

Click here to view the original article at Sacramento Family Court News. SFCN is a nonprofit journalism organization publishing investigative reporting, news analysis, opinion and satire about the local family court system.

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Woodruff O'Hair Posner & Salinger Inc Criminal Conduct by Partner Paula D. Salinger Alleged and Documented in Leaked Court Records - All Firm Partners Hold Office of Temporary Judge

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Obstruction of Justice Crimes Alleged Against Judge Pro Tem Attorney Paula Salinger, Sacramento Bar Association Family Law Executive Committee Officer

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Allegations that judge pro tem lawyer Paula Salinger committed obstruction of justice crimes against an indigent, unrepresented pro per have gone viral throughout family court reform social media.

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To continue reading, click Read more >> below:

As Sacramento Family Court News previously reported, Salinger has been caught in several scandals including filing counterfeit documents in court, violating state laws and court rules, illegally attempting to obtain a final divorce judgment while an appeal in the same case was pending, and obtaining a questionable waiver of the requirements to become a temporary judge. Salinger also obtained from controversial Judge

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Matthew Gary an illegal order for more than $10,000 in attorney fee sanctions against the same contempt and domestic violence victim. To benefit Salinger, Gary also illegally attempted to use fee waiver law to obstruct an appeal of several orders he issued for Salinger in the same case. Salinger's firm, Woodruff, O'Hair, Posner & Salinger Inc., previously was sued for legal malpractice in a case alleging more than $1 million in damages.

The new, criminal allegations first surfaced last month on social media, including Facebook and Twitter, where several posts linked to supporting documents posted at Docstoc and Calameo. Due to the serious nature of the claims, SFCN did not report on the assertions pending authentication of the records. SFCN has now verified the accuracy of the documents and posted the complete set at our Scribd account. The Scribd document set is embedded below.

Obstruction of Justice The records indicate that Paula Salinger, a Sacramento County Superior Court sworn temporary judge and officer of the Sacramento Bar Association Family Law Executive Committee violated California Penal Code sections prohibiting witness intimidation and deceit of a witness. Under California law, both offenses are designated as obstruction of justice crimes. The circumstances also reveal new collusion between Salinger and Judge Matthew Gary.

As reflected by page one of the document set, at an unrelated court hearing held three weeks before the date calendared for the contempt case, in open court Gary disclosed to Salinger that he would deny the contempt claims, even though Salinger had yet to file a response to the contempt pleading. Gary’s prejudgment of the contempt matter was a clear violation of the California Code of Judicial Ethics, the state laws governing judge conduct. The state Commission on Judicial Performance has publicly disciplined several judges for “acting in a way that manifested prejudgment…A trial judge should not prejudge the issues but should keep an open mind until all the evidence is presented to him.” In one CJP judicial discipline case, Judge Bruce Van Voorhis was disciplined for creating "the appearance of prejudgment in your discussion of the case in open court by improperly predicting the outcome of the case," according to CJP records. Click here for a compilation of CJP disciplinary decisions about prejudgment.

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Salinger then used the judge's unlawful disclosure in a threatening letter to the unrepresented opposing party: "As the court indicated at the hearing on October 27, 2010, your Order to Show Case (sic) Re: Contempt does not contain sufficient factual basis to sustain the contempt. At the hearing on November 17, 2010, I intend to request the court dismiss the matter and order sanctions pursuant to Family Code section 271 for proceeding with the contempt...Should you provide written proof (a copy of a confirming letter to the court) by Monday, November 1, 2010 at 5:00 p.m. that the above matters have been dropped, I shall withdraw my requests for sanctions pursuant to FC § 271," Salinger wrote in a letter to the contempt victim and witness. Page one of the document set below is an authenticated copy of the threatening letter. The alleged criminal acts were committed after the indigent, unrepresented pro per filed a criminal contempt of court allegation against a Salinger client. The contempt filing charged several violations of the Standard Family Law Restraining Orders, which are issued in all divorce proceedings. SFLRO's are automatically ordered against both parties when a dissolution of marriage is initiated in family court.

As page one of the document set reflects, Salinger illegally threatened the victim and witness with financial harm in the form of attorney fee sanctions if they did not drop the criminal contempt case. As page three and four reflect, Salinger concurrently filed an illegal responsive declaration in the contempt case with a demand for $1,000 in attorney fee sanctions against the contempt victim and witness.

As the page two legal reference reflects, under California law the response to a contempt allegation may only be used to answer the contempt charge, or move to discharge the State Bar Chief Trial Counsel Jayne Kim has been criticized for not enforcing state attorney ethics laws against lawyers contempt on appropriate grounds. Requesting "affirmative - like Paula Salinger - for misconduct against pro per litigants. relief," including attorney fee sanctions, in response to a contempt allegation is prohibited by law. As page five of the document set shows, Salinger's threat coerced the victim and witness to drop the contempt matter.

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Witness Tampering Law As reflected by pages 6-16 of the document set below, Penal Code §133 makes it a crime to use fraud or deceit to affect the testimony of a victim or witness. Penal Code §§136.1(a) & (b) make it a crime to maliciously prevent or discourage a witness or victim from giving testimony at a judicial proceeding. Salinger has not been charged with either crime, disciplined by the State Bar, Supreme Court or Judicial Council, or otherwise held accountable for the misconduct. Pro per advocates call the absence of accountability more proof that attorneys are effectively immune from punishment for egregious misconduct against unrepresented pro pers who can't afford a lawyer, and make up 70 percent of family court litigants.

Civil law statutes, including wrongful use of civil proceedings, and abuse of process may also apply to Salinger's lawbreaking acts. In addition, an attorney who intentionally deceives a party to a court case is subject to misdemeanor criminal prosecution under Business and Professions Code § 6128. SFCN is completing an indepth investigative report on the criminal contempt incident and other troubling proceedings and documents from the same case. Our report will be published in the near future.

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An attorney who intentionally deceives a judge or any party is guilty of a misdemeanor crime under California law. Family court reform advocates assert that many family court lawyers routinely and deliberately engage in deceptive tactics, and that the law goes unenforced by judges, prosecutors, and State Bar Chief Trial Counsel Jayne Kim.

Family court reform advocates say the latest revelations are additional proof that the court operates effectively as a racketeering enterprise that deprives the public of the federally protected right to honest government services. Court watchdogs assert and have documented that judge pro tem attorneys receive kickbacks in the form of rubber-stamped orders and other preferential treatment from family court judges and employees. The divorce lawyers who also hold the Office of Temporary Judge operate the family court settlement conference program in exchange for the kickbacks and emoluments, watchdogs charge. California Penal Code § 94 makes receipt of an emolument by a judicial officer a crime, and several federal criminal statutes prohibit similar conduct. The 2014 documentary film Divorce Corp designates Sacramento Family Court as the most corrupt in the United States. For our complete coverage of the movie, click here.

Click to visit Sacramento Family Court News on: Facebook, YouTube, Google+, Scribd, Vimeo, and Twitter. For additional reporting on the people and issues in this post, click the corresponding labels below the document set:

Paula Salinger - Witness Intimidation-Influence Witness by Fraud-Obstruction of Justice - Divorce Attorney... by Sacramento Family Court News

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Local & National Family CourtFamily Law Sites & Blogs (may be gender-specific) ABA Family Law Blawg Directory California Coalition for Families and Children California Protective Parents Association Center for Judicial Excellence Courageous Kids Network Divorce & Family Law News Divorce Corp Divorced Girl Smiling Family Law Case Law from FindLaw Family Law Courts.com Family Law Updates at JDSupra Law News

WOODRUff, O'HAIR, POSNER & SALINGER, INC. A LAW CORPORATION D. Thomas Woodruff. C.F.L.S.", AAML"*

2251 Fair Oaks Boulevard, Suite 100 Sacramento. California 95825 Telephone : (916) 920-0211 Facsimile: (916) 920 0241

Robert J. O'Hair. C.F.L.S.", AAML*" Jeffrey J. Posner, C.F.L.S.• Paula D. Salinger

Email: paula@woplaw.com

October 28, 2010

PO Box 60662 Sacramento, CA 95860 VIA EMAIL TRANSMISSIO Re: Marriage ofDearAs the court indicated at the hearing on October 27, 2010, your Order to Show Case Re: Contempt does not contain sufficient factual basis to sustain the contempt. At the hearing on November 17, 2010, I intend to request the court dismiss the matter and order sanctions pursuant to Family Code section 271 for proceeding with the contempt. Additionally, the court offered you the opportunity to drop your Notice of Motion filed October 20, 201O and your Notice of Motion filed October 22, 2010 since the court had already ruled on the issues related to your motions. Since you refuse to drop your frivolous motions, I intend to seek sanctions pursuant to FC §271 for the necessity of defending the motions. Lastly, your motion filed October 8, 2010 does not set forth a basis to strike the Memorandum to Set filed October 1, 2010. I am requesting you drop this hearing. Should you refuse to drop your hearing, I intend to seek sanctions pursuant to FC §271. Your behavior in this matter furthers arid frustrates the policy of law intended to promote settlement of litigation and encourage cooperation. Should you provide written proof (a copy of a confirming letter to the court) by Monday, November 1, 2010 at 5:00 p.m. that the above matters have been dropped, I shall withdraw my requests for sanctions pursuant to FC §271. I look forward to hearing from you. Sincerely, WOODRUFF, O'HAIR, POSNER & SALINGER, INC. Dictated but not reviewed to avoid delay. Paula D. Salinger pds:sbo cc: •

Certified Family Law S.oecralisl. The Slate Bar ofCalifomiaBoarr,

>f Legal Speoalzat1on

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Cal. Prac. Guide Family L. Ch. 18-B California Practice Guide: Family Law Judge William P. Hogoboom (Ret.), Justice Donald B. King (Ret.), Contributing Authors: Judge Kenneth A. Black (Ret.), Judge Thomas Trent Lewis, Michael Asimow, Bruce E. Cooperman Chapter 18. Enforcement Of Orders And Judgments B. Enforcement Remedies And Procedures

1. Contempt a. [18:105] Nature of contempt—in general: A party subject to a valid court order who, with knowledge of the order and the ability to comply, fails to comply with the terms of the order is subject to a contempt adjudication and statutory contempt penalties (see CCP §§ 1218 & 1219, ¶ 18:220 ff.). As an enforcement remedy, exercise of the contempt power enables the court to compel compliance with its valid orders. [In re Marcus (2006) 138 CA4th 1009, 1014, 41 CR3d 864–865]…

…(c) [18:212] No affirmative relief by responsive declaration: In OSC and motion hearings generally, respondent is permitted to use the responsive declaration to seek affirmative relief alternative to that requested by the moving party, on the same issues raised by the moving party; this is an exception to the general rule that an independent OSC or notice of motion must be filed to obtain affirmative relief. [See Fam.C. § 213, discussed at ¶ 5:372 ff.] However, Fam.C. § 213 does not apply to contempt hearings; i.e., the citee’s responsive declaration may only be used to answer the contempt charge or move to discharge the contempt on appropriate grounds (above). [Fam.C. § 213(a)—“In a hearing on an order to show cause ... other than for contempt (responding party may seek affirmative relief on same issues by filing responsive declaration)” (emphasis and parentheses added)]

§ 13:107. Witness intimidation, L & R, California Criminal Law § 13:107 (2011-2012 ed.)

L & R, California Criminal Law § 13:107 (2011-2012 ed.) Expert Series California Criminal Law Database updated December 2011 Laurie L. Levenson, Alex Ricciardulli Chapter 13. Crimes Against the Administration of Government § 13:107. Witness intimidation Whoever attempts to prevent or dissuade a victim or crime witness from reporting the incident to law enforcement officials, prosecutors or the judge, is guilty of witness intimidation.1 A person may be guilty of aiding and abetting witness intimidation, but the evidence must show that the defendant had the specific intent for witness intimidation to be committed. If the aider and abettor has such intent, he or she is guilty not only of the intended or target offense, but also of any other crime the direct perpetrator of the crime commits that is a natural and probable consequence of the target offense.2 However, witness intimidation is not the natural and probable consequence of vehicle burglary or illegal possession of a weapon.3 Footnotes 1 Penal Code § 136.1(b). 2

People v. Leon, 161 Cal. App. 4th 149, 158, 73 Cal. Rptr. 3d 786, 793 (4th Dist. 2008), as modified on denial of reh’g, (Apr. 14, 2008).

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§ 608. Bribe or deceit of witness, 17 Cal. Jur. 3d Criminal Law: Crimes Against...

17 Cal. Jur. 3d Criminal Law: Crimes Against Admin. of Justice § 608 California Jurisprudence 3d Database updated May 2012 Criminal Law: Crimes Against Administration of Justice and Public Order Robert F. Koets, J.D., William Lindsley, J.D., Sarah Newcomb, J.D., and Susan L. Thomas, J.D. II. Crimes Against Public Justice D. Interference with Evidence and Witnesses 3. Particular Offenses Involving Interference With or Influencing of Witnesses Topic Summary Correlation Table References § 608. Bribe or deceit of witness West's Key Number Digest West's Key Number Digest, Bribery 1(1), 3, 6(4) West's Key Number Digest, Obstructing Justice 4, 21 A.L.R. Library Admissibility in criminal case, on issue of defendant's guilt, of evidence that third person has attempted to influence a witness not to testify or to testify falsely, 79 A.L.R.3d 1156 A person who gives or offers or promises to give to a witness or person about to be called as a witness a bribe upon an understanding or agreement that such person will not attend any trial or other judicial proceeding is guilty of a felony. The attempt to commit the crime is also a felony. 1 A bilateral agreement is not a necessary element of the crime. There need be no meeting of the minds between the briber and the witness. It is sufficient if the defendant offers the bribe with the intent of persuading the witness to agree not to testify. 2 A misdemeanor is committed by anyone who practices any fraud or deceit or knowingly makes or exhibits any false statement, representation, token, or writing to a witness or person about to be called as a witness in any trial, proceeding, inquiry, or investigation with intent to affect the testimony of the witness. 3 Footnotes Pen. Code, § 138, subd. (a). 1 2 3

As to bribery, generally, see §§ 526 to 553. People v. Pic'l, 31 Cal. 3d 731, 183 Cal. Rptr. 685, 646 P.2d 847 (1982). As to agreement or understanding in a prosecution for bribery, generally, see § 534. Pen. Code, § 133.

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§ 604. Generally, 17 Cal. Jur. 3d Criminal Law: Crimes Against Admin. of Justice § 604

17 Cal. Jur. 3d Criminal Law: Crimes Against Admin. of Justice § 604 California Jurisprudence 3d Database updated May 2012 Criminal Law: Crimes Against Administration of Justice and Public Order Robert F. Koets, J.D., William Lindsley, J.D., Sarah Newcomb, J.D., and Susan L. Thomas, J.D. II. Crimes Against Public Justice D. Interference with Evidence and Witnesses 2. Preventing or Dissuading Attendance, Testimony, or Reporting of Crimes by Witness or Victim Topic Summary Correlation Table References § 604. Generally West's Key Number Digest West's Key Number Digest, Bribery 1(1), 3, 6(4) West's Key Number Digest, Obstructing Justice 4, 21 A.L.R. Library Admissibility in criminal case, on issue of defendant's guilt, of evidence that third person has attempted to influence a witness not to testify or to testify falsely, 79 A.L.R.3d 1156 It is a public offense to knowingly and maliciously prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law or to attempt to do so. 1 Advising a witness to conceal himself or herself for the purpose of avoiding service of a subpoena is a violation of this provision. 2 Evidence that the defendant was a family member who interceded in an effort to protect the witness or victim creates a presumption that the act was without malice. 3 It is a crime to attempt to prevent or dissuade another person who has been the victim of a crime or who is a witness to a crime from doing any of the following: • making any report of that victimization to any peace officer or state or local law enforcement officer or probation or parole or correctional officer or prosecuting agency or to any judge 4 • causing a complaint, indictment, information, probation, or parole violation to be sought and prosecuted, and assisting in the prosecution thereof 5 • arresting or causing or seeking the arrest of any person in connection with that victimization 6 Footnotes Pen. Code, § 136.1, subd. (a). 1 In re Holmes, 145 Cal. App. 3d 934, 193 Cal. Rptr. 790 (2d Dist. 1983). 2 Pen. Code, § 136.1, subd. (a)(3). 3 Pen. Code, § 136.1, subd. (b)(1). 4 Pen. Code, § 136.1, subd. (b)(2). 5 Pen. Code, § 136.1, subd. (b)(3). 6 End of Document

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2622. Intimidating a Witness (Pen. Code, § 136.1(a) & (b)) The defendant is charged [in Count ] with intimidating a witness [in violation of Penal Code section 136.1]. To prove that the defendant is guilty of this crime, the People must prove that: <Alternative 1A—attending or giving testimony> [1. The defendant maliciously (tried to (prevent/ [or] discourage)/(prevented/ [or] discouraged)) <insert name/description of person defendant allegedly sought to influence> from (attending/ [or] giving testimony at) <insert type of judicial proceeding or inquiry authorized by law>;] <Alternative 1B—report of victimization> [1. The defendant [maliciously] (tried to (prevent/ [or] discourage)/(prevented/ [or] discouraged)) <insert name/description of person defendant allegedly sought to influence> from making a report that (he/she/someone else) was a victim of a crime to <insert type of offıcial specified in Pen. Code, § 136.1(b)(1)>;] <Alternative 1C—causing prosecution> [1. The defendant [maliciously] (tried to (prevent/ [or] discourage)/(prevented/ [or] discouraged)) <insert name/description of person defendant allegedly sought to influence> from cooperating or providing information so that a (complaint/indictment/information/probation violation/parole violation) could be sought and prosecuted, and from helping to prosecute that action;] <Alternative 1D—causing arrest> [1. The defendant [maliciously] (tried to (prevent/ [or] discourage)/(prevented/ [or] discouraged)) <insert name/description of person defendant allegedly sought to influence> from (arresting[,]/ [or] (causing/ [or] seeking) the arrest of [,]) someone in connection with a crime;] 2.

<insert name/description of person defendant 542

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allegedly sought to influence> was a (witness/ [or] crime victim); AND 3. The defendant knew (he/she) was (trying to (prevent/ [or] discourage)/(preventing/ [or] discouraging)) <insert name/description of person defendant allegedly sought to influence> from <insert appropriate description from element 1> and intended to do so. [A person acts maliciously when he or she unlawfully intends to annoy, harm, or injure someone else in any way, or intends to interfere in any way with the orderly administration of justice.] [As used here, witness means someone [or a person the defendant reasonably believed to be someone]: <Give the appropriate bracketed paragraph[s].> • [Who knows about the existence or nonexistence of facts relating to a crime(;/.)] [OR] • [Whose declaration under oath has been or may be received as evidence(;/.)] [OR] • [Who has reported a crime to a (peace officer[,]/ [or] prosecutor[,]/ [or] probation or parole officer[,]/ [or] correctional officer[,]/ [or] judicial officer)(;/.)] [OR • [Who has been served with a subpoena issued under the authority of any state or federal court.]] [A person is a victim if there is reason to believe that a federal or state crime is being or has been committed or attempted against him or her.] [It is not a defense that the defendant was not successful in preventing or discouraging the (victim/ [or] witness).]

543

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[It is not a defense that no one was actually physically injured or otherwise intimidated.] New January 2006

BENCH NOTES Instructional Duty The court has a sua sponte duty to give this instruction defining the elements of the crime. In element 1, alternative 1A applies to charges under Penal Code section 136.1(a), which prohibits “knowingly and maliciously” preventing or attempting to prevent a witness or victim from giving testimony. Alternatives 1B through 1D apply to charges under Penal Code section 136.1(b). Subdivision (b) does not use the words “knowingly and maliciously.” However, subdivision (c) provides a higher punishment if a violation of either subdivision (a) or (b) is done “knowingly and maliciously,” and one of the other listed sentencing factors is proved. An argument can be made that the knowledge and malice requirements apply to all violations of Penal Code section 136.1(b), not just those charged with the additional sentencing factors under subdivision (c). Because the offense always requires specific intent, the committee has included the knowledge requirement with the specific intent requirement in element 3. (People v. Ford (1983) 145 Cal.App.3d 985, 990 [193 Cal.Rptr. 684]; see also People v. Womack (1995) 40 Cal.App.4th 926, 929–930 [47 Cal.Rptr.2d 76].) If the court concludes that the malice requirement also applies to all violations of subdivision (b), the court should give the bracketed word “maliciously” in element 1, in alternatives 1B through 1D, and the definition of this word. If the defendant is charged with one of the sentencing factors in Penal Code section 136.1(c), give CALCRIM No. 2623, Intimidating a Witness: Sentencing Factors. If the defendant is charged with the sentencing factor based on a prior conviction, the court must give both CALCRIM No. 2623 and CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, unless the court has granted a bifurcated trial on the prior conviction or the defendant has stipulated to the conviction. Note that Penal Code section 136.1(a)(3) states, “For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice.” It is unclear whether the court must instruct on this presumption. 544

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AUTHORITY •

Elements.

Pen. Code, § 136.1(a) & (b).

•

Malice Defined.

•

Witness Defined.

•

Victim Defined.

•

Specific Intent Required. People v. Ford (1983) 145 Cal.App.3d 985, 990 [193 Cal.Rptr. 684]; see also People v. Womack (1995) 40 Cal.App.4th 926, 929–930 [47 Cal.Rptr.2d 76].

Pen. Code, § 136(1). Pen. Code, § 136(2). Pen. Code, § 136(3).

Secondary Sources 2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, §§ 5, 6. 4 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 82, Witnesses, § 82.07, Ch. 84, Motions at Trial, § 84.11 (Matthew Bender). 5 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 91, Sentencing, §§ 91.23[6][e], 91.43 (Matthew Bender). 6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.13[4][b]; Ch. 144, Crimes Against Order, § 144.03[2], [4] (Matthew Bender).

LESSER INCLUDED OFFENSES A violation of Penal Code section 136.1(a) or (b) is a felony-misdemeanor, punishable by a maximum of three years in state prison. If the defendant is also charged with one of the sentencing factors in Penal Code section 136.1(c), then the offense is a felony punishable by two, three, or four years. In the defendant is charged under Penal Code section 131.6(c), then the offenses under subdivisions (a) and (b) are lesser included offenses. The court must provide the jury with a verdict form on which the jury will indicate if the prosecution has proved the sentencing factor alleged. If the jury finds that this allegation has not been proved, then the offense should be set at the level of the lesser offense. The misdemeanor offense of knowingly inducing a false statement to a law enforcement official in violation of Penal Code section 137(c) is not a lesser included offense of Penal Code section 137(b) because the latter offense lacks the element that the defendant must actually cause a false statement to be made. (People v. Miles (1996) 43 Cal.App.4th 575, 580 [51 Cal.Rptr.2d 52].) 545

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RELATED ISSUES Penal Code Sections 137(b), 136.1, and 138 Because one cannot “influence” the testimony of a witness if the witness does not testify, a conviction under Penal Code section 137(b) is inconsistent with a conviction under Penal Code section 136.1 or 138, which requires that a defendant prevent, rather than influence, testimony. (People v. Womack (1995) 40 Cal.App.4th 926, 931 [47 Cal.Rptr.2d 76].)

546

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2621. Influencing a Witness by Fraud (Pen. Code, § 137(b)) The defendant is charged [in Count ] with using fraud to influence a person to (give false (testimony/ [or] information)/ [or] withhold true (testimony/ [or] information)) [in violation of Penal Code section 137(b)]. To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant used fraud against <insert name/description of person defendant allegedly sought to influence>; AND <Alternative 2A—to give or withhold testimony> [2. When the defendant used fraud, (he/she) intended to cause <insert name/description of person defendant allegedly sought to influence> to (give false testimony/ [or] withhold true testimony).] <Alternative 2B—to give or withhold information> [2. When the defendant used fraud, (he/she) intended to cause <insert name/description of person defendant allegedly sought to influence> to (give false material information about a crime to/ [or] withhold true material information about a crime from) a law enforcement official.] A person uses fraud when he or she makes a false statement, misrepresents information, hides the truth, or otherwise does something with the intent to deceive. [Information is material if it is significant or important.] [(A/The) (district attorney[,]/ [or] deputy district attorney[,]/ [or] city attorney[,]/ [or] deputy city attorney[,]/ [or] Attorney General[,]/ [or] deputy attorney general[,]/ [or] <insert title of peace offıcer included in Pen. Code, § 830 et seq.>) is a law enforcement official.] [The People do not need to prove that <insert name/ description of person defendant allegedly sought to influence> 539

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actually (gave false (testimony/information)/ [or] withheld true (testimony/information)).] New January 2006

BENCH NOTES Instructional Duty The court has a sua sponte duty to give this instruction defining the elements of the crime. Give the bracketed sentence that begins with “The People do not need to prove that” if the evidence shows that the testimony or information of the alleged target was not affected.

AUTHORITY •

Elements.

Pen. Code, § 137(b).

•

Fraud Defined. People v. Pugh (2002) 104 Cal.App.4th 66, 72 [127 Cal.Rptr.2d 770].

•

Law Enforcement Official Defined.

•

Specific Intent Required. People v. Womack (1995) 40 Cal.App.4th 926, 929–930 [47 Cal.Rptr.2d 76].

Pen. Code, § 137(e).

Secondary Sources 2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, § 12.

LESSER INCLUDED OFFENSES The misdemeanor offense of knowingly inducing a false statement to a law enforcement official in violation of Penal Code section 137(c) is not a lesser included offense of section 137(b) because the latter offense lacks the element that the defendant must actually cause a false statement to be made. (People v. Miles (1996) 43 Cal.App.4th 575, 580 [51 Cal.Rptr.2d 52].)

RELATED ISSUES Deceiving a Witness Deceiving a witness is a separate crime under Penal Code section 133: Every person who practices any fraud or deceit, or knowingly makes or exhibits any false statement, representation, token, or writing, to any witness or person about to be called as a witness upon any trial, proceeding, inquiry, or investigation whatever, authorized by law, with 540

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intent to affect the testimony of such witness, is guilty of a misdemeanor.

541

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