judge matthew gary-illegal $10,000 attorney fees sanction order for judge pro tem attorney paula...

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THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SACRAMENTO

---ooo---

In re the Marriage of:

,

Petitioner,

vs CASE NO. 10

,

Respondent.

---ooo---

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Held in the Superior Court, in and for the County of Sacramento, Department 121, on Wednesday, May 9, 2012;

Before the HONORABLE MATTHEW J. GARY, Judge

For the Petitioner:

For the Respondent:

Reported By:

---ooo---

APPEARANCES

WOODRUFF, O'HAIR, POSNER & SALINGER 2251 Fair Oaks Boulevard Sacramento, California 95825

IN PROPRIA PERSONA

Tara Murany, CSR No. 12892

~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------~

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The $3,302 given the nature and what we've gone

through today for this motion alone is appropriate as a 271

3 sanction because we're here based upon your failure to comply

4 and your breach of fiduciary duties along the way. I feel

5 that the request of 5,000, whether it's 5,000 or 2,500,

6 either one I was comfortable with. I cut their additional

7 sanction in half. That is a penalty against you in addition

8 to the actual costs she sustained. That is a penalty to be a

9 shot over your bow that you cannot behave like this and not

10 be sanctioned further.

11 The factual and legal basis for that is 271 is the

12 legal. The factual basis is you are simply being an

13 obstructionist in this entire matter. You have been an

14 obstructionist for this motion, and the factual basis is,

15 frankly, your misconduct.

16 That should do, sir. I'm ordering you to prepare

17 the Statement of Decision. You can provide it to

18 Ms. Salinger for review. And please do that within the time

19 required by the California Rule of Court. You should have

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that -- if you don't have it memorized, I'd be a little bit

surprised, but you should be able to look that up. It is a

Rule of Court.

THE RESPONDENT: On the 271 --

THE COURT: And that will be it for today. Thank

you both very much. Thank you, counsel.

THE RESPONDENT: On -- a question on the 271

27 sanctions, Your Honor, real quick, did you do the comparative

28 wealth? Did you consider that?

~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------46

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THE COURT: I'm finished. No, I set it at $25 a

month due to your claim of poverty, which I don't know, but

you should be able to come up with a little bit less than a

dollar a day.

THE RESPONDENT: I don't mean in terms of the

payment, I mean in terms of the initial ruling where you're

supposed to.

THE COURT: Go ahead and prepare the Statement of

Decision for me, sir.

THE RESPONDENT: What's that?


Decision for me.

THE RESPONDENT: I need that for the Statement of

Decision.

THE COURT: I told you the total attorney's fees is

$10,759 for today. Thank you. And you can pay that at 25 a

month on account. Go ahead and include that in your

Statement of Decision. Thank you.

THE RESPONDENT: But you're required to take into

account the income and assets of the party.

THE COURT: I set it at 25 a month, sir.

THE RESPONDENT: Not on the payment.

THE COURT: That's less than a dollar a day.

THE RESPONDENT: Okay. Thank you, Your Honor.

THE COURT: Thank you.

(Whereupon, proceedings concluded.)

~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS---------47

Payments last over 35 years.Respondent is disabled, indigent pro per.Respondent is domestic violence victim-see below.

NOTE: The complete transcript from this hearing is included below:

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Cal. Prac. Guide Family L. Ch. 14-A

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 14. Attorney Fees, Costs And Sanctions

A. Fees And Costs Awards

h. Amount of sanction

(1) [14:245] Not limited to consequential expenses: Fam.C. § 271, unlike other sanctions statutes (e.g., CCP § 128.7, ¶ 14:89), does not require a direct correlation between the amount of the sanction imposed and expenses incurred in resisting the sanctionable conduct. Thus, potentially greater sanctions are awardable under Fam.C. § 271. [Marriage of Corona (2009) 172 CA4th 1205, 1226–1227, 92 CR3d 17, 35; see Marriage of Falcone & Fyke (2012) 203 CA4th 964, 138 CR3d 44—“it is of no moment” that some portion of § 271 sanctions can be “pigeon-holed” outside actual costs incurred by moving party in resisting sanctionable conduct] Moreover, under appropriate circumstances, the family court may impose § 271 sanctions for attorney fees incurred in a different case. [See Burkle v. Burkle (2006) 144 CA4th 387, 400, 403, 50 CR3d 436, 445, 448, fn. 7]

(a) [14:245.1] Compensation for all consequential fees/costs not required: By the same token, there is no “minimum” limit on a § 271 sanctions assessment. Thus, nothing in the statute requires that the sanction imposed compensate for all fees and costs expended as a result of the sanctionable conduct. [Marriage of Battenburg (1994) 28 CA4th 1338, 1345–1346, 33 CR2d 871, 875]

(2) [14:246] Cannot impose unreasonable financial burden: Other limitations unique to § 271 place an ultimate cap on the awardable amount: While “need” is irrelevant, the court must take into consideration “all evidence concerning the parties‘ incomes, assets, and liabilities.” And in no event may the amount of the sanction impose “an unreasonable financial burden” against the sanctioned party. [Fam.C. § 271(a); Marriage of Fong (2011) 193 CA4th 278, 291, 123 CR3d 260, 270 (but no showing trial court failed to consider sanctioned party’s ability to pay); Marriage of Lucio (2008) 161 CA4th 1068, 1083, 74 CR3d 803, 814] In effect then, a § 271 sanction must be scaled to the payor’s ability to pay. [Marriage of Falcone & Fyke (2008) 164 CA4th 814, 828, 79 CR3d 588, 601; see Marriage of Quay (1993) 18 CA4th 961, 969, 22 CR2d 537, 542, fn. 2—party requesting fees need not show need, “but such an award should always be made in light of the parties‘ financial circumstances”]

(a) [14:247] Rationale: “[U]nless trial courts ‘scale’ any such awards to the comparative wealth of the parties they may discourage the ... [sanctioned] economically weaker party from filing actions she or he should and from pursuing those actions with the vigor they deserve.” [Marriage of Norton (1988) 206 CA3d 53, 60, 253 CR 354, 358 (brackets added)] Therefore, trial courts should take account of the “comparative wealth of the competing litigants and the effect of wealth disparities on litigation behavior” when they fashion costs and fees awards pursuant to § 271. [Marriage of Norton, supra, 206 CA3d at 60, 253 CR at 358 (emphasis added)]

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(b) [14:248] Distinguish—“comparative wealth” irrelevant to propriety of sanction award: “Comparative wealth” bears only on the amount of the § 271 sanctions assessment. Unlike § 2030 need-based awards, the parties’ “relative circumstances” are irrelevant to the determination of whether to make the award. [Fam.C. § 271(a)—applicant spouse need not demonstrate financial need] [14:249] Reserved.

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THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SACRAMENTO

---ooo---

In re the Marriage of:

,

Petitioner,

vs CASE NO. 10

,

Respondent.

---ooo---

REPORTER'S TRANSCRIPT OF PROCEEDINGS

Held in the Superior Court, in and for the County of Sacramento, Department 121, on Wednesday, May 9, 2012;

Before the HONORABLE MATTHEW J. GARY, Judge

For the Petitioner:

For the Respondent:

Reported By:

---ooo---

APPEARANCES

WOODRUFF, O'HAIR, POSNER & SALINGER 2251 Fair Oaks Boulevard Sacramento, California 95825

IN PROPRIA PERSONA

Tara Murany, CSR No. 12892


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SACRAMENTO, CALIFORNIA

MAY 9, 2012

3 ---ooo---

4 Proceedings in the Marriage of Case No.

5 , came on regularly this day before the Honorable

6 MATTHEW J. GARY, Judge of the Superior Court of California,

7 for the County of Sacramento, Department 121, thereof.

8 The Petitioner, was

9 represented by PAULA D. SALINGER, Attorney at Law.

10 The Respondent, appeared

11 IN PROPRIA PERSONA.

12 The following proceedings were then had, to wit:

13 ---ooo---

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THE COURT: And then , is that ready?

MS. SALINGER: Yes, Your Honor.

THE COURT: Come on up.

MS. SALINGER: Your Honor, I do have a statement of

attorney's fees and costs. May I approach?

THE COURT: You may, thank you.

MS. SALINGER: I did give a copy of it

21 this morning.

22 THE COURT: Great. Thank you. And good morning to

23 all.

24 MS. SALINGER: Good morning.

25 THE COURT: Record will reflect both parties are

26 present, and counsel for is present. And anything

27 worked out at all on this?

28 MS. SALINGER: No, Your Honor.

~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------1

1 THE RESPONDENT: Can we get on the record what she

2 just handed you, Your Honor?

3 THE COURT: Yes, sir. A statement of attorney's

4 fees and costs. And did you receive that, sir?

5 THE RESPONDENT: Yes, I did, just five minutes ago.

6 THE COURT: Okay. And Ms. Salinger, I believe this

7 is your motion. You may be heard.

8 MS. SALINGER: Yes, Your Honor. Motion presents

9 seven items that we are requesting that the Court orders, and

10 really nothing has changed since the filing of the motion.

11 Did you have an opportunity, Your Honor, to review the motion

12 and the points and authorities?

13 THE COURT: Yes.

14 MS. SALINGER: So the most important part of our

15 motion are the first two requests that we're making. We're

16 making a request to present Mr. -- prevent Mr. from

17 presenting evidence that should have been presented in his

18 declaration of disclosure. Despite the fact that not only

19 does the code provide that he is supposed to serve a

20 declaration of disclosure, and then in October of 2010 after

21 the filing of a Motion to Compel the Court ordered him to

22 provide his declaration of disclosure, it still has not been

23 completed. We're simply unable to proceed on this matter,

24 and get the issues resolved, and get it to trial without

25 Mr. presenting a declaration of disclosure. So that is

26 the first order that we're requesting.

27 And what ties into that is granting my client the

28 voluntary waiver of Mr. declaration of disclosure,

~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------2

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again, so this matter can proceed to trial. I believe it's

Mr. desire to simply drag this matter out to make it

difficult for my client and not be able to reach a resolution

of this matter. And we have made several attempts to resolve

it. We've been to a settlement conference. He simply

refuses to comply with the court orders and comply with

discovery, comply with disclosure.

The other items that we're requesting are that he

obtain his personal property, which is in a storage unit that

my client has obtained for him. When the Court ordered in

October 2010 that he vacate the residence, my client moved

in, and he did not take his personal belongings. So at that

point in order to secure those belongings, she moved them

into a storage unit. We immediately requested that he pick

them up. He has refused, and she's been paying for that

storage unit since November of 2010.

The other items are the automobile that is in his

possession was my client's separate property. She's more

than happy to turn it over to him. The Court previously

ordered that he have exclusive use and possession. She has

the title here today. She's ready to sign it over to him.

She has continued to have to pay the expenses associated with

that, mainly the DMV registration, and also it ties into the

automobile insurance. She'd like to get the parties

automobile insurance separated at this point.

Then the other two items are related to fees and

costs. Mr. did file an appeal of your orders,

Your Honor, from October of 2010. While he did file that


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appeal, he just delayed it. He never filed an opening brief

after getting numerous, I think it was five or six,

extensions; so after nearly a year, the court of appeal

dismissed that appeal. Of course, we were sort of in limbo

waiting to see what would happen with that, so again, a

further delay. He also filed a petition for review of the

Supreme Court of California, which was denied. My client did

have to retain a counsel that was associated in, and her fees

associated with the appeal, her fees and costs, were

$4,957.11.

In addition, I'm requesting that Mr. pay

attorney's fees and sanctions for the necessity of bringing

this motion today. He does have a fiduciary duty under the

code to provide disclosure. And certainly he's not only

provided -- not provided disclosure, but also not complied

with the Court's orders to provide disclosure and to answer

the discovery. So the request for the fees and sanctions is

not only contained in my motion, but an updated statement of

fees and costs was provided to the Court and to Mr.

this morning. So the fees incurred related to this motion

are now $3,302.50, and we're also requesting $5,000 in

sanctions against Mr.

THE COURT: How much was the appeal attorney?

MS. SALINGER: The appeal was $4,957.11. Those

were the costs and fees with Elizabeth Niemi.

THE COURT: And Mr. if you wish, if you'd

walk through -- walk me through your position on each of

those issues?


1 THE RESPONDENT: Yes, thank you, Your Honor. First

2 off, I'd like to request a long-cause hearing for this

3 matter.

4 THE COURT: Well, a long cause on what?

5 THE RESPONDENT: On the issues at issue here.

6 THE COURT: On which issue, though?

7 THE RESPONDENT: Have you read my pleadings?

8 THE COURT: Which pleadings, sir?

9 THE RESPONDENT: My responsive declaration.

10 THE COURT: Where did you file it, sir?

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THE RESPONDENT: Here.

THE COURT: Where?

THE RESPONDENT: Well, I filed it by mail. What do

14 you mean here? What do you mean where?

15 THE COURT: Where did you send -- where did you

16 file your pleadings?

17 THE RESPONDENT: I sent it by mail to this address

18 here to the clerk of the court.

19 MS. SALINGER: Your Honor, Mr. pleadings

20 were served on my office on the 3rd of May, so I'm guessing

21 the Court has not received them.

22 THE COURT: Let me go back to the original

23 question.

24 THE RESPONDENT: I have an extra set here, Your

25 Honor, if that would help.

26 THE COURT: Okay. Well, let me go back. You're

27 requesting a long cause. I'm not quite sure what. I'm not

28 sure what the factual dispute is at this point. I'm going to


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what your side is right now on each of these requests.

THE RESPONDENT: Okay.

THE COURT: Apparently a package did come in. It

did arrive. There's a whole package of unfiled documents.

Apparently you sent this up to admin, or you sent --

7 actually, you sent it simply to the court, which unless you

8 send it in with a -- with a runner or you bring it in or

9 something, it's simply delivered to general mail upstairs.

10 Did this go to general mail upstairs? Yeah.

11 THE RESPONDENT: I followed the instructions for

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filing by mail, Your Honor

THE COURT: So -

THE RESPONDENT: on the website, the court

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16 THE COURT: these apparently came in. The post

17 mark on this is May 3rd, so I'm not exactly sure when the

18 court received it. My assumption is probably sometime Monday

19 or Tuesday. It may have been Friday. In any event, I didn't

20 the documents are not here timely. I have not reviewed

21 them.

22 THE RESPONDENT: It was sent priority mail per the

23 instructions on the court website.

24 THE COURT: Sure. Just for your information,

25 though, sir, I have not reviewed or -- I have not reviewed

26 the documents as they were not filed timely. I'll take a

27 look now. I'll take a look at the documents unless,

28 Ms. Salinger, you have an objection to the Court considering


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the documents based upon the timeliness or untimeliness of

their filing.

MS. SALINGER: I do have an objection, Your Honor.

The documents as you just mentioned are due at least nine

court days prior to the hearing to be filed and served, and

that would have been April 26th that they should have been

7 served and filed with the Court.

8 THE COURT: Okay. When did you receive them?

9 MS. SALINGER: I received them on the 3rd of May

10 also via e-mail.

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THE COURT: Have you had adequate opportunity to

review them and reply?

MS. SALINGER: I have reviewed. I have not

replied, Your Honor. I have reviewed. I did not have time

to draft a reply.

THE COURT: Okay. All right. Mr.

unfortunately, I'm going to go ahead and have the documents

filed for you, but I will not consider them for today's

19 hearing as they are untimely filed and served.

20 THE RESPONDENT: Now, isn't it, Your Honor,

21 customary -- I'd request to continuance then, Your Honor.

22 THE COURT: If I can go back, sir, and let's go

23 ahead and take a look at the issues. And on the first issue,

24 Ms. is simply requesting that the Court prevent you

25 from producing evidence simply because you did not comply

26 with the Court's order to provide disclosures, and this

27 should be under 2100 et sec. What's your position on that?

28 THE RESPONDENT: Your Honor, if I may, I wasn't


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quite finished with my grounds for my evidentiary hearing.

THE COURT: But Mr.

THE RESPONDENT: Yes, sir.

THE COURT: I am finished with it for just a

moment. And if you would follow my lead and allow me to

direct my court, I'm directing you to reply to the first

request. And you don't have to. I'm not telling you you

have to, but we're going to actually stay on my agenda for

now and not yours.

So between you and I, what I'm inviting is your

reply to their first item. Frankly, it's actually their

first two items. She wishes to voluntarily waive your

disclosure, and she wishes to proceed without your

disclosures, and she wishes an order preventing you from

producing evidence based on stuff that would otherwise have

had to have been disclosed. How do you reply?

THE RESPONDENT: Your Honor, I have objections to

that under rule 5.118, subsection (f), California Rules of

Court and Code of Civil Procedure Section 436 and 431.10.

Those contentions are based on two declarations, which

contain inadmissible material.

THE COURT: Mr. is it true that I ordered

back in October of 2000

MS. SALINGER: '10, Your Honor.

THE COURT: 2010 to produce a declaration for

disclosure?

THE RESPONDENT: That's true, Your Honor.

THE COURT: And did you do that?


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THE RESPONDENT: No, I didn't, Your Honor.

THE COURT: Okay.

THE RESPONDENT: It's my position that those orders

4 are void on their face.

5 THE COURT: That's -- thank, you sir. A and B are

6 granted. Mr. is precluded from producing the evidence

7 that would otherwise have been disclosed in the disclosures,

8 and she may proceed to judgment with a voluntary waiver of

9 his preliminary and final disclosures. So SA and 8B are

10 granted in the motion.

11 As to C, sir, do you have any objection of

12 obtaining your personal property?

13 THE RESPONDENT: Your Honor, I'd like to present

14 live testimony under rule California Rules of Court 5.119

15 to which I meant -- tried to say earlier.

16 THE COURT: Okay. Did you give a notice of that?

17 THE RESPONDENT: Does that require notice?

18 THE COURT: Did you notice the other side that you

19 wish to present live testimony today?

20 MS. SALINGER: He did not, Your Honor.

21 THE COURT: And who did you wish to call as a

22 witness?

23 THE RESPONDENT: I wish to call as a witness the

24 authors of the two declarations.

25 THE COURT: Are they here?

26 THE RESPONDENT: One of them is.

27 THE COURT: Authors of what two declarations?

28 THE RESPONDENT: The two declarations that were

~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS----------9

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filed with this motion today.

THE COURT: Who are you speaking of, sir?

THE RESPONDENT: I'm speaking of the Petitioner.

THE COURT: Who do you wish to call as a witness?

THE RESPONDENT: The Petitioner.

THE COURT: For what purpose?

THE RESPONDENT: To question her about the content

of the declaration she filed.

THE COURT: Well, I'm asking you about 8C, the

request 8C says she wishes that you obtain your personal

property. Do you have any objection for the return of your

personal property? She's offering you your property. Do you

want your property? I was kind of thinking that you wouldn't

object to obtaining your property.

THE RESPONDENT: Your Honor, that property is not

my property.

THE COURT: Okay. Then can she have it?

THE RESPONDENT: That is community property, which

she unilaterally divided and transferred in violation of the

automatic temporary restraining orders.

THE COURT: Mr. , would you like her to keep

the property at this point, or do you want to obtain the

property? She's offering it to you.

THE RESPONDENT: It's community property. It

hasn't been divided yet.

THE COURT: And she's offering it to you at this

point. Do you want it?

THE RESPONDENT: I do not want it.

~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------10

1 THE COURT: Do you want

2 THE RESPONDENT: I want to go through the normal

3 process of dividing community property.

4 THE COURT: This is actually a normal process. If

5 you don't want it, she can have it. If she doesn't want it,

6 you can have it.

7 THE RESPONDENT: I don't know if I want it or not.

8 I don't know how -- it's all negotiable. We haven't got to

9 that point yet.

10 THE COURT: Yes, you do. It's on the table right

11 now, and I'm offering it to you.

12 THE RESPONDENT: This is a wrong condition. This

13 is a coercive condition, coercive environment.

14 THE COURT: So I'm going to assume at this point

15 she can have the property; is that fair?

16 THE RESPONDENT: No, that's not fair.

17 THE COURT: Okay. I'm going to go ahead and order

18 it to you right now. You can pick it up. Go ahead and

19 arrange it.

20 THE RESPONDENT: I have no way to pick it up.

21 THE COURT: You can have all the property.

22 THE RESPONDENT: I have no way to transport it.

23 THE COURT: I do need it removed out of the storage

24 within how soon?

25 MS. SALINGER: Are you paid through June?

26 Mrs. Mrs.: I'm paid through the end of May.

27 MS. SALINGER: So the payment is good to the end of

28 May, so if it can be picked up by May 31st?


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THE COURT: Sure. Sir, go ahead and pick up your

property. I'm going to award you the property.

Ms. Salinger, your client's position is he can have

all the property?

MS. SALINGER: Yes, all the property.

THE COURT: She's not charging a value?

MS. SALINGER: No, Your Honor.

THE COURT: Sir, you can have all the property,

just have it vacated out of the storage by May 31st.

THE RESPONDENT: I have no way to get it out of the

storage, Your Honor.

MS. SALINGER: Mr. -- Your Honor, Mr. has a

Toyota 4Runner my client has given him, and he can transport

the property with that automobile.

THE RESPONDENT: Your Honor, that's not true.

That's -- I barely have gas money to get here. At the start

of this case she took control of all of our assets. She's

refused to release any funds to me to hire an attorney, to

pay rent, to pay business expenses. My checking account was

closed for insufficient funds in November 2011. I had to

borrow money to get gas to come to this hearing today. I

filed a response with evidentiary objections because her

pleading does not conform to California Rules of Court and

local rules. You haven't read the pleadings.

THE COURT: You haven't --

THE RESPONDENT: You haven't read my response.

THE COURT: You haven't timely filed it, and it was

properly objected to, and I'm not going to read it. I will

~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS 12

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go ahead and have it filed for you, but I will not consider

it because it is not timely filed. And I've addressed that

issue, so let's move away from that.

Sir, I do want you to pick up that property, have

the property removed from the storage on or before 5-31-2012.

If it's not removed timely, she may go ahead and remove the

property and dispose of it, which means she can sell it, she

can keep it, she can give it away. And I will assume at that

point, if it's fair with you, that you have abandoned the

property, and she can do with it what she wants. Okay with

you?

THE RESPONDENT: Yes, Your Honor. Let me -


THE RESPONDENT: ask one thing.

THE COURT: So that will take care of Item C. So

if he doesn't have it removed, she can go ahead and dispose.

MS. SALINGER: There's also the issue of

reimbursing the Petitioner for storage expenses because she

has --

THE COURT: How much is she asking for?

MS. SALINGER: She is requesting $1,723. That was

the cost of the storage from the date Mr. was ordered

to move out. Actually, she kept it a couple months later.

He was ordered to move out November 1, '10. She moved the

items to storage February 1, '11, so from February 1, '11,

and that's just through March of '12. So it's 139. It's

another $279 on top of that, so it's $1,992 that will get us

through May.


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THE COURT: And does she say that was his separate

property, or was that simply his goods from the marriage, in

essence, community?

THE PETITIONER: It was separate property.

MS. SALINGER: As I recall, the vast majority of

those items were separate property items.

THE RESPONDENT: Your Honor, those items are listed

in her statement of issues, contentions and proposed

disposition filed November 23rd, 2010 as community property,

and in all settlement proposals it's all been listed as

community property. She unilaterally divided community

property, transferred it to a storage unit in violation of

the automatic temporary restraining orders.

THE COURT: Actually, that wouldn't be

transferring property to a storage unit is not a violation of

ATRO, A-T-R-0. It's not.

Okay, so sir, what's your position regarding the

reimbursement for the storage?

THE RESPONDENT: I -- I Your Honor, isn't it

customary that when -- between -- if I -- if I was -- if I

had an attorney, would it not be customary if an -- and this

is -- I'm saying this based on having read Civil Procedure

Before Trial by Wiel and Brown, Hogoboom and Kings Family

Law, Wegner et al. Civil Trials in Evidence, all the Rutter

Group California Practice Guide publications. Now, isn't it

customary when if I had an attorney, two attorneys, if one

filed -- according to these references, if one attorney files

a pleading, which is tardy, and the other attorney objects,

~---------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS---------14

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the objecting attorney is offered a continuance in order to

reply to the pleading, otherwise the pleading is considered.

THE COURT: Not necessarily.

THE RESPONDENT: What -- can you cite some

authority for that decision?

THE COURT: How about if we just simply if I can

redirect you back to my agenda? No, I don't -- I really

can't think -- by the way, I cannot think of the authority on

this excepting to give you the general rule. When there are

timelines set for the filing and the reply to pleadings,

those timelines are for a reason. They're to meet the

constitutional requirement of notice and opportunity to be

heard.

And so when Ms. Salinger filed her motion, she was

required to have it filed and served on you within X number

of days. Typically it's served personally a minimum of 16

court days, if it's served by mail 16 court days plus five

days mail, to allow you to have the time and the opportunity

to prepare, meaningfully review the request and to prepare a

reply, and that she gave you. The reason for the timeline on

the response is to allow the person who filed the motion the

opportunity to have -- to have the time to review the

response and provide a reply.

Now, many times it is true that counsel offer each

other courtesies. But when it comes to the point and that

could be, by the way, it could be a counsel offering counsel

courtesy, or a counsel offering a self-represented, as you

are, a courtesy, or a self-represented offering counsel a


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courtesy. It could go either which way. What happens in

cases as they progress, when one party or one attorney begins

to be obstinate, and every step of the way the other side has

to pull teeth to get things done, for example, your case, and

then Ms. Salinger --

THE RESPONDENT: You're referring to me as being

obstinate?

THE COURT: No, I'm referring to you as every step

of the way in your case you have, as Ms. Salinger has pointed

out, been somewhat difficult. So if she comes in and says,

you know what, I don't think today I'm going to offer

Mr. a courtesy that I might offer someone else who has

always offered me courtesies in return, and she doesn't do

that, I can understand that, but I'm not going to force her

to do it. And I can see what's going on in this case as we

speak, and I can see what's going on in the case -- I've had

the case for some time now, since 2010, and I can see why her

position would be that way. I don't find it unreasonable,

and so I'm not going to overrule her objection and ignore the

timelines.

Now, I can't cite you to a statute, or I can't cite

you to a case. I can simply tell you the reason for the

timelines. And she doesn't consent to waiving the defect,

and I will sustain her objection. The objection is properly

made by law, and it's properly sustained.

So can I get --

THE RESPONDENT: It's not a matter of--

THE COURT: Can I get you to reply? If you will


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stay with my agenda, once again, can I get you to reply to

the request for $1992 for storage?

THE RESPONDENT: Your Honor, my reply, I have

objections to the evidence under California Rules of Court

5.118, subsection (f). You're not familiar with that rule,

Your Honor? You're looking it up there.

THE COURT: Does that surprise you? That I would

have to look up a rule.

THE RESPONDENT: Well, I would think it would be.

THE COURT: You would think I would have memorized

the Family Code, the Civil Code, the Code of Civil Procedure?

THE RESPONDENT: I apologize. That's not fair.

You're right.

THE COURT: Yeah, I agree. It's not fair. And all

the amendments that come out every single year.

And sir, what do you propose is the defect under

(f), 5.118(f)?

THE RESPONDENT: The defect is the motion was not

filed -- just give me a second. I have to go through my

papers here. The declaration does not comply with the

California Rules of Court 2.108, subsection (4) requiring

line numbers in the left margin. Now, that is not a trivial

defect.

THE COURT: How so?

THE RESPONDENT: It also does not comply --

THE COURT: How so, Mr. Never mind. Never

mind on that. And can you point me to the timely filing of

the objection once again? Oh, that's right, we don't have


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one.

THE RESPONDENT: That's been resolved. Now we're

moving on to objections I have a right to protect here.

THE COURT: That's right, we okay. Thank you,

sir. I'm going to go ahead and order the 1992 reimbursement

having no valid reason why that shouldn't be.

Sir, you've had notice of this all along. She's

been making a request. You simply haven't complied with it.

I don't know why she would be stuck with the burden of paying

for all of that all along when you didn't address it

reasonably.

THE RESPONDENT: I have addressed it.

THE COURT: Let's go ahead and move on to 8D.

MS. SALINGER: Then, Your Honor, can that be due

also on the 31st of this month?

THE COURT: Yes. I'm just going to render an

order. It's collectible at any time.

MS. SALINGER: Okay. Thank you, Your Honor.

THE COURT: Okay. 8D, and that is, sir, can you go

ahead and pick up your own automobile insurance at this

point?

THE RESPONDENT: No, I can't.

THE COURT: You can't? Okay. This is prejudgment

still?


THE COURT: And how much is that a month she's

paying?

MS. SALINGER: It's approximately $100 a month for


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both parties.

4 portion.

5

THE PETITIONER: Mm-hmm.

MS. SALINGER: So about $50 a month is Mr. '

THE COURT: I'm assuming she's going to be asking

6 for a credit in the end?

7 MS. SALINGER: Yes, Your Honor.

8 THE COURT: Okay. And sir, is there a reason you

9 can't pay for your $50 a month for your auto insurance?

10 THE RESPONDENT: Yes, Your Honor. I just explained

11 to you that I have no funds whatsoever. I'm indigent. I'm

12 destitute, literally, as a result of Petitioner's conduct.

13 We had $20,000, $23,000 community funds, but she --and she's

14 the managing spouse, which she took control of before she

15 filed the petition for divorce. It appears to have all been

16 mapped out ahead of time. They've used my indigency to try

17 to coerce settlement, an inequitable settlement, deny me the

18 right to an attorney. Under the facts of this case, I have a

19 right to an attorney. Assets, community assets exist to

20 allow me to have an attorney.

21 MS. SALINGER: Mr. has been provided funds.

22 He also is electing not to work. He also filed, well,

23 attempted to file an Income and Expense Declaration, which

24 shows expenses which are paid, so I'm assuming he has income

25 from some source.

26 THE RESPONDENT: I have no income. I live with my

27 father who is on social security.

28 THE COURT: How long until this matter is set for

---------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------19

Johnson

FCN-Footer-Header

1 trial?

2 MS. SALINGER: I'll be filing an at issue

3 memorandum right after this, Your Honor. I just needed to

4 cure the disclosure problem up.

5 THE COURT: Right.

6 THE RESPONDENT: And I had line-by-line evidentiary

7 objections under rule 5.118(f).

8 THE COURT: Unfortunately, I did not get a timely

9 filing on that, so --

10 THE RESPONDENT: No, I'm-- Your Honor, this rule,

11 this is an in-court rule. This rule permits in-court

12 evidentiary objections in family law cases, and I filed

13 written -- timely and written evidentiary objections before

14 the last hearing, which you didn't rule on then either.

15 THE COURT: Is there a combined insurance policy?

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MS. SALINGER: The auto insurance, Your Honor?

THE COURT: Uh-huh.

MS. SALINGER: Yes.

THE COURT: A multi-discount rate right now?

MS. SALINGER: Do you have other items on there or

21 just the vehicles? Okay. So Ms. has her homeowner's

22 insurance and the parties' vehicles on there, so I'm assuming

23 she's getting some small benefit for that, yes.

24 THE COURT: Okay. On that request I'm going to go

25 ahead and deny the request without prejudice. She can raise

26 that at long cause and request reimbursement --

27 MS. SALINGER: Okay.

28 THE COURT: Epstein claim or Watts, or Epstein


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claim.

4Runner?

property.

Sir, any objection to your taking the Toyota

THE RESPONDENT: Yes.

THE COURT: It was her separate property, right?


THE COURT: And she's giving you her separate

THE RESPONDENT: The descriptionS in her

declaration regarding the 4Runner are not true. They're

incorrect. They're false.

now?

it back.

THE COURT: Does she want possession of the 4Runner

MS. SALINGER: Do you want it back?

THE PETITIONER: If he doesn't want it.

MS. SALINGER: If he doesn't want it, she'll take

THE COURT: Sir, why don't you just -- why don't

you then at this point, if you don't want -- she's giving you

a vehicle.

THE RESPONDENT: I didn't say I don't want it.

THE COURT: I don't get it.

THE RESPONDENT: I said

THE COURT: I just asked you if it's okay. She's

offering to give you the 4Runner.

THE RESPONDENT: She's offering to give me the

4Runner so she won't have to pay for the insurance.

THE COURT: Well, she's probably not going to have


1 to pay for the insurance in two months anyway when you get to

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trial.

THE RESPONDENT: Well, if you look at the history

4 of the case, Your Honor, she's --

5 THE COURT: I have looked at the history of the

6 case.

7 THE RESPONDENT: She's the managing spouse.

8 THE COURT: Sir, Mr. , you have done a lot of

9 reading. I can tell. You must spend your days reading. You

10 must spend your days completely absorbed in your case. It

11 happens to some people. I understand it. It is happening to

12 you.

13 What I'm telling you is first of all, you have a

14 seven-year marriage. You separated in 2010. The parties'

15 duties and responsibilities to each other are going to come

16 to an end sooner rather than later. It is highly unlikely

17 that Ms. is going to be ordered to be carrying car

18 insurance for you for any length of time at all.

19 What she's doing right now, if the facts as stated

20 are true, she has a separate property interest in the Toyota.

21 It --meaning it's hers. It's not subject to division. If

22 that is true, she is not just giving you one half of a

23 community interest in something, she's giving you something

24 you have no interest at all, and frankly, you have no right

25 to have possession of right now. So what she's doing is

26 she's offering you title to the vehicle. Do you want a

27 vehicle for free, or do you wish to give the vehicle back to

28 her? And you can go obtain your own vehicle, and that way


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you won't have that string tied that you fear is tying you

down.

THE RESPONDENT: Your Honor, your --

THE COURT: You keep looking at generosity as if

it's somehow nefarious.

THE RESPONDENT: Your qualifier in that was -

THE COURT: I'm not here to --

THE RESPONDENT: assuming these facts are true.

They are not true.

THE COURT: Oh, you mean the Toyota 4Runner was not

hers before marriage?

THE RESPONDENT: It was hers before marriage. It

was -- it was -- became mine during marriage.

THE COURT: How so? You mean she transferred title

to your name?

THE RESPONDENT: No. We kept the title in her name

for a reason.

THE COURT: So title and time, if you go look up

your sources that you keep citing me to, if you look those

up, you will find two ways generally to characterize

property, title and time. And if we use both title, it's in

her name, and time, acquired prior to marriage, you're going

to find it's hers.

THE RESPONDENT: There is -- I'm familiar with the

law, Your Honor.

THE COURT: Okay. So you're familiar then it's her

property, and she's offering it to you. Do you want it?

Mr. , I am trying to work through this with


1 you so that you see, but I don't see anything nefarious about

2 her offering you her separate property. Do you want it or

3 not? Otherwise, she can have it back. And if she has the

4 vehicle, one of the thought processes in my mind is if he has

5 the vehicle, she's going to want to maintain --make sure

6 it's still insured because it's in her name, right?

7 MS. SALINGER: Right, Your Honor.

8 THE COURT: So if you don't want the vehicle, I'm

9 going to send the vehicle back to her, and she doesn't have

10 to maintain insurance.

11 THE RESPONDENT: Would that be forthwith?

12 THE COURT: Sure. If you want to surrender it now,

13 it doesn't matter to me.

14 THE RESPONDENT: How would I get back to San Jose

15 where I live?

16 THE COURT: Public transportation, or call your

17 dad, or a friend or something. I don't know.

18 THE RESPONDENT: Under those coercive conditions, I

19 will take the 4Runner.

20 THE COURT: I'm not trying to coerce you into

21 anything, Mr. . Do you wish to have the 4Runner?

22 And if -- by the way, if I do award -- give you the

23 4Runner now, in essence, a predisposition, I am going to ask

24 that you maintain the insurance on it.

25 THE RESPONDENT: As a condition of taking it, or --

26 THE COURT: Yeah. It's no longer going to be hers.

27 She's going to sign title over to you, and you insure your

28 own vehicle.


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THE RESPONDENT: Isn't that how it normally would

work?

THE COURT: Is that okay with you then?

THE RESPONDENT: You don't have to order that,

right?

THE COURT: Is that okay with you?

THE RESPONDENT: Well, it's all based on defective

pleadings and declarations, so it's okay with me with that

qualifier.

THE COURT: With what? Okay. So -

THE RESPONDENT: What you just said.

THE COURT: -- you take the Toyota, and then you

take the insurance on the Toyota.

THE RESPONDENT: Right.

THE COURT: Yeah, perfect. All right. So I'm

going to strike what I ordered before on the insurance, and

what we're going to do

MS. SALINGER: We'll deal with the reimbursement

issue for the prior months at long cause.

THE COURT: Yes, just make a claim at long cause.

MS. SALINGER: Yes.

THE COURT: So Mr. gets the Toyota.

MS. SALINGER: And we have the title today,

Your Honor. So after the hearing, we'll fill everything out

and be finished with it.

THE COURT: Sign it off and do your notice of

non-responsibility, and you're clear.

MS. SALINGER: Yes.


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THE COURT: Okay. Then finally, sir, would you

like to be heard on the issue of attorney's fees? I've got

the appeal, the request for fees for the appeal of just shy

4 of 5,000, 4,957, costs for today's hearing of $3,302 and

5 5,000 in sanctions.

6 THE RESPONDENT: Yes, I have

7 THE COURT: Is that okay?

8 THE RESPONDENT: I have evidentiary objections on

9 that too.

10 THE COURT: Okay. But how about the underlying --

11 the underlying request itself on the merits?

12 THE RESPONDENT: Well, the pleading does not comply

13 with Rules of Court.

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THE COURT: Okay. And besides that?

THE RESPONDENT: Besides that it -- the declaration

16 -- the declaration of the appellate attorney misrepresents

17 the court of appeal proceedings. And I have evidence here

18 that I'd like to enter, exhibits that I'd like to enter into

19 evidence from the actual court of appeal pleading.

20 THE COURT: Would you mind summarizing that for me

21 briefly?

22 THE RESPONDENT: I -- you're catching me off-guard,

23 Your Honor. I was prepared to, you know, make formal

24 objections and present evidence the way it's done in civil

25 court, which is my right, and it's apparent that that's not

26 going to happen.

27 THE COURT: Anything else on that issue, sir?

28 THE RESPONDENT: And I'd like to request a long


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cause hearing too for that issue. Obviously it's very

substantial. It's a lot of money. Both declarations

misrepresent the court of appeal record and the court of

4 appeal proceedings. And I have formal evidentiary objections

5 to both declarations as I stated earlier, and I would like to

6 present live testimony as I stated earlier. The declarations

7 contain false, immaterial and irrelevant material as defined

8 by the Code of Civil Procedure. You are not familiar with my

9 pleadings, which is what occurred at the last hearing as

10 well. For whatever reason you didn't get them on time. I

11 offered you an -- I brought an extra set of pleadings for you

12 just in case.

13 THE COURT: And sir, on the request for live

14 testimony, again, who did you wish to call?

15 THE RESPONDENT: I wish to call Petitioner, the

16 authors of the two declarations.

17 THE COURT: Well, ma'am sir, I don't know who

18 the other author is.

19 THE RESPONDENT: That would be Elizabeth Niemi, the

20 appellate attorney.

21 THE COURT: Okay. And again, did you make a

22 request prior to the hearing and file and serve a witness

23 list?

24 THE RESPONDENT: Where -- what is the reference for

25 that, Your Honor, because I didn't -- I'm not familiar with

26 that.

27 THE COURT: 217(c).

28 THE RESPONDENT: What is it?


1 THE COURT: 217(c). If you wish to call Ms.

2 she's your witness.

3 Ms. , if you'd come on up to the witness

4 stand?

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THE RESPONDENT: Now, this would be on the -

THE COURT: I don't know.

7 Ma'am, if you'd raise your right hand, I'll swear

8 you in. Do you solemnly swear the testimony you're about to

9 give in the cause now pending shall be the truth, so help

10 you, God?

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THE WITNESS: I do.

THE COURT: Thank you. You're welcome to have a

13 seat. State your full name and spell it for us.

14 THE WITNESS: , ,

15 , .

16 THE COURT: Thank you. Good morning again to you.

17 THE WITNESS: Good morning.

18 THE COURT: Mr. , your witness on direct exam.

19 THE RESPONDENT: Your Honor, I'd like to request a

20 short recess. You are catching me off-guard here.

21 THE COURT: I thought you wanted to put on live

22 testimony this morning.

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THE RESPONDENT: I did.

THE COURT: Your witness is on the stand.

25 THE RESPONDENT: As you may have noticed, I already

26 started packing up my stuff --

27 THE COURT: I didn't.

28 THE RESPONDENT: -- based on your prior denial of


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that request.

THE COURT: I did not notice that. No, I only

asked you if you had a list because you were calling other

than parties. You don't need an advance notice for

non-parties, but for a party -- I mean

THE RESPONDENT: Yeah, no.

THE COURT: you need to notify of non-parties.

But for a party, you can call, and I have your witness on the

stand. Your request to continue is denied. Your witness.

THE RESPONDENT: Okay. Let me find what I need to

find here.

THE COURT: I can see, sir, that you are completely

disorganized. I'm not --

THE RESPONDENT: How am I disorganized? I have

everything neatly organized in envelopes.

THE COURT: It appears to me you are not ready to

you are not ready to question a witness, that all of this

is just simply posturing.

THE RESPONDENT: Well, if you read my -- if you

had --

THE COURT: The declarations that are untimely

filed? I have not read them and won't. They're untimely

filed and served. Your witness, sir. You may question your

witness.

TESTIMONY OF

,

having been called as a witness by the Respondent; and

having been duly sworn, was examined and testified as


Johnson

FCN-Footer-Header

1 follows:

2 DIRECT EXAMINATION

3 BY THE RESPONDENT:

4 Q. Okay. Let's see, where is her declaration at? Here we

5 go. Okay. On your declaration -- state your name.

6 THE COURT: She has.

7 THE RESPONDENT: Okay.


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Q. Okay. On your declaration, page 1, let's see, it would

be under, A, discovery, there's no -- there's no paragraph

numbers on this declaration, and there's no line numbers in

the left margin.

THE COURT: Sir, did you have a question for the

witness?

BY THE RESPONDENT:

Q. Under A, under discovery, the first paragraph, it says:

On August 3rd, 2010, a demand for production of documents was

served on Respondent. Respondent failed to respond.

Is that -- is that true?

A. I believe that's true.

Q. Did you not -- did your attorney provide you with copies

22 of my response?

23 MS. SALINGER: Objection, Your Honor. This is

24 irrelevant to the issue we're addressing. We're addressing

25 attorney's fees. You've already ruled on these items.

26 THE COURT: Overruled. First of all, the call of

27 the question was really whether or not that's what it says in

28 the declaration. Is that what it says in the declaration to


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your knowledge?

Sir, did you have a courtesy copy for your witness?

THE RESPONDENT: Yes, I did.

THE COURT: And where is that, please?

THE RESPONDENT: That is

THE COURT: The Court will need a copy. The

counsel will need a copy, and the witness should have a copy.

THE RESPONDENT: Yeah, I brought --

THE COURT: Are you prepared to do this?

THE RESPONDENT: multiple copies of everything,

Your Honor, for that very purpose.

THE COURT: And where are they?

THE RESPONDENT: I have multiple copies of -

THE COURT: Yes, but I need one, and so the does

the witness.

THE RESPONDENT: -- all of the court of appeal

pleadings.

THE COURT: Did you have a copy of the document

you're referring the witness to? And do you have a copy for

the Court, counsel and the witness?

THE RESPONDENT: Yes, I do. Here we are.

Here's --

MS. SALINGER: As I glance over his shoulder,

Your Honor, this is a completely different declaration. This

is not the declaration that he is referring to. It looks

like it's a declaration from a prior motion or response that

was filed.

THE COURT: Is that true, Mr.


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THE RESPONDENT: Let me look. Yeah, that's right.

That was another one I wanted to ask her about.

THE COURT: Any other questions for the witness,

sir?

THE RESPONDENT: I don't have extra copies of the

declaration.

THE COURT: Mr. any other questions for your

witness?

THE RESPONDENT: Well, I have other parts of the

declaration there.

THE COURT: My question to you is do you have any

other questions for your witness?

THE RESPONDENT: Yes, I do, but apparently I can't

comply with the requirement that I provide her copies of -

THE COURT: Well, it's not necessarily a

requirement, it's courtesy.

THE RESPONDENT: Okay. Then are you saying I can

proceed?

THE COURT: Well, it appears to me that you are

completely unable or disorganized here.

THE RESPONDENT: Your Honor

THE COURT: Did you

THE RESPONDENT:

could get organized.

I asked for a continuance so I

THE COURT: No, you asked to put on live testimony.

And 217 requires me to offer you that ability, and that's

what I'm doing. But like I said before, it appears to me

that the 217 request was a complaint, and it was a posture,


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and I'm calling you on it. And I've got your witness on the

stand,, and you are fumbling through. I have a courtroom

full of cases waiting to be heard, but you do have a right,

as you point out, under 217. Unfortunately, you are not

prepared under 217 to expeditiously or efficiently to

proceed. You did it just simply to posture.

THE RESPONDENT: No, I didn't do it to posture.

THE COURT: Okay. Here's your witness.

THE RESPONDENT: If you had read my pleadings

THE COURT: Sir, next question.

THE RESPONDENT: Now you have me all flustered.

THE COURT: You have yourself flustered. I'm

patiently waiting, so it's your witness.

BY THE RESPONDENT:

Q. So moving on. Now, did you -- did your attorney provide

you copies of my response to the demand for production of

documents?

A. Yes.

Q. She did?

MS. SALINGER: Objection; Your Honor.

THE COURT: Basis?

MS. SALINGER: The basis is the form of the

question. My client has no -- Mr. is forming the

question about something that my client does not understand

the answer to.

THE COURT: You can -- overruled. You can

redirect, or --

MS. SALINGER: Thank you, Your Honor.


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THE COURT: -- cross of your own client.

BY THE RESPONDENT:

Q. So your attorney did provide you copies of my response

to your demand for production of documents?

A. I believe that is true.

Q. Which had to do with I needed to have an attorney to

respond? Because in here you said Respondent failed to

respond, so that would not be true.

A. I get copies of everything that is -- e-mails written

back and forth. I get copies of everything, so I don't know.

That's two years ago.

Q. That's what that one was. That was an e-mail, yeah.

THE COURT: Sir, as an offer of proof, what did you

put in that response?

THE RESPONDENT: I put in that response that I

would respond when I had -- I needed the advice of counsel to

respond.

THE COURT: So you're asking this witness whether

or not her attorney got a response to the demand for

production of documents, and that the response to the demand

to production of documents simply said I'm not responding

now, but I'll get an attorney and maybe I'll respond?

THE RESPONDENT: No, it said more than that.

THE COURT: What did it say? Did you produce the

documents requested?

THE RESPONDENT: At that point in time, Your Honor

THE COURT: Did you produce the documents


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requested, yes or no?

THE RESPONDENT: No, but I produced a response,

which under discovery statute constitute --

THE COURT: Did you ever produce the documents

requested?

THE RESPONDENT: extenuating circumstances --

THE COURT: Did you ever produce the documents?

THE RESPONDENT:

producing the documents.

and good cause for not

THE COURT: Did you ever produce the documents

requested?

THE RESPONDENT: No, I didn't produce the

documents. I never got an attorney.

THE COURT: Next question.

THE RESPONDENT: They never let me get an attorney.

THE COURT: Next question. Let's move on.

And Ms. Salinger, when we get to the end, go ahead

and give me your updated attorney's fees request.

MS. SALINGER: Okay, Your Honor.

BY THE RESPONDENT:

Q. Okay. Moving on to Item B on page 2, declaration of

disclosure, the first paragraph: Petitioner's preliminary

declaration of disclosure was served on Respondent July 9th,

2010. Petitioner's final declaration was served on

December 7th. Petitioner requested Respondent prepare and

serve his preliminary declaration of disclosure. Respondent

failed to respond.

Now, is it true that you have -- that Respondent,


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I, have made multiple requests for the household financial

records, which you control and which you -- is that true?

MS. SALINGER: Objection, Your Honor; compound

question.

THE COURT: Sustained.

BY THE RESPONDENT:

Q. Have I made requests to you for the household financial

records?

A. I don't know what you're referring to as household

financial records.

Q. The records that you removed from the residence in May

2010.

A. Those were my records with my name on them only.

Q. What made those your records?

A. They're in my name only.

Q. Those records, did they include the mortgage information

for the house?

A. That's correct.

Q. Did they include bank account information?

A. That's correct, under my name only.

Q. Were there community funds in those bank accounts?

A. I don't know. They were my earned

MS. SALINGER: Your Honor

THE WITNESS: -- things.

MS. SALINGER: -- it appears this line of

questioning is more appropriate for the actual trial on the

merits, and I'm certainly willing to set that matter for a

settlement conference and trial as we discussed.


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THE COURT: Well, unfortunately we're stuck with

217. As improvident as it is, we're stuck with it, and Mr.

has his opportunity. What I may do is pass. I've got

a whole courtroom, or half a courtroom full of people with

their cases waiting to go.

Mr. can I ask you, by offer of proof, did

you ever provide any disclosures?

THE RESPONDENT: I could not provide disclosures

until I got the household financial records controlled by

Respondent. I made multiple requests.

THE COURT: You couldn't even provide a preliminary

with an estimate even though I ordered you to do that in

October of 2010?

THE RESPONDENT: The preliminary with an estimate?

THE COURT: Yes, your preliminary disclosures.

THE RESPONDENT: Your Honor

THE COURT: Did you provide a preliminary

THE RESPONDENT:

disclosures --

the statute on preliminary

THE COURT: Mr. when I ask a question, I

want an answer, not a lecture. Did you provide a declaration

of disclosure, preliminary?

THE RESPONDENT: I could not provide it.

THE COURT: Okay. Let's move on. Next question.

BY THE RESPONDENT:

Q. So the --

THE COURT: You could not provide a preliminary? I

don't buy it. Next question.


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THE RESPONDENT: The preliminary as opposed to a

THE COURT: Yes.

4 THE RESPONDENT: A preliminary has on it, it talks

5 about --

6 THE COURT: I'm aware of what a preliminary has.

7 THE RESPONDENT: Well, it has household mortgage

8 information.

9 THE COURT: Next question.

10 THE RESPONDENT: It has banking information.

11 THE COURT: Mr. next question.

12 THE RESPONDENT: Okay. So we've confirmed that she

13 has the banking records. We've confirmed that she has the

14 household mortgage records.


16 Q. Now, were community funds used to pay the household

17 mortgage over the course of the marriage?

18 THE COURT: Mr. let's move on to the next

19 line of questioning. See, you haven't provided any

20 disclosures. That was the basis. Not even a preliminary

21 saying you don't have sufficient information to answer. Go

22 ahead.

23 THE RESPONDENT: Well, I provided --

24 THE COURT: Next line of questioning.

25 THE RESPONDENT: I have multiple written

26 communications with Ms. Salinger.

27 THE COURT: Mr. Mr. , next line of

28 questioning, please.


1 THE RESPONDENT: Okay.


3 Q. Petitioner -- under C: Petitioner requested Respondent

4 stipulate to a vocational evaluation. Respondent refused.

5 Now, did you receive copies from your attorney of

6 my response to the vocational evaluation request.

7 A. I don't think you responded to it. I don't remember you

8 responding to it.

9 Q. Did you not get a response, that e-mail, copies of

10 e-mails or letters between your attorney and I where I cited

11 that I required advice of an attorney?

12 MS. SALINGER: Objection, Your Honor, it's been

13 asked and answered.

14 THE COURT: As it relates to this, overruled, but

15 it's somewhat vague. I'm not sure what the relevance of this

16 is. What is this, attorney's fees? How come this is

17 relevant to today's proceeding?

18 THE RESPONDENT: This is relevant to credibility

19 for one thing.

20 THE COURT: All right. Next question.


22 Q. Okay. So just so we have that clear, you did not

23 receive copies of e-mails or letters --

24 THE COURT: No, I said next question.

25 ATTORNEY 1: I was saying the next question.

26 THE COURT: I thought you were saying what you

27 thought you had clear.

28 THE WITNESS: I have copies of everything.


Johnson

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2 Q. Do you recall if any of those include communications

3 between your attorney and I regarding vocational evaluation?

4 A. There were so many e-mails that went back and forth, and

5 that was almost a year and a half ago. I can't remember

6 verbatim what was said, but I received copies of everything.

7 Q. Okay. Moving on. Item H, page 3.

8 THE COURT: I don't see the relevance of

9 questioning in that. You guys have agreed to the property.

10 THE RESPONDENT: The relevance of this is this is

11 the most relevant of all because it is patently, demonstrably

12 false statement, which goes to credibility.

13 THE COURT: But you guys came to an agreement.

14 I've got an agreement on the record of what we're going to do

15 with your personal property.

16 THE RESPONDENT: The agreement made today?

17 THE COURT: Yeah. You're taking your personal

18 property. You're going to have it out by May 31st. And if

19 you don't, if you don't recover your personal property, she

20 may take possession of it and dispose of it. I thought we

21 had an agreement on that. Same thing, we have an agreement

22 on the 4Runner and the automobile insurance. You get the

23 4Runner, and you're picking up the insurance. Was there

24 anything else you wanted to question your witness on that

25 remains in dispute?

26 THE RESPONDENT: This is to the credibility of this

27 -- of this declaration.

28 THE COURT: I don't need anything. You guys have


1 an agreement. I don't need anything on these issues. You

2 guys have agreed to it. Whether you're credible or

3 incredible, you've agreed to it. Anything else you wish to

4 question the witness on?

5 THE RESPONDENT: These go to my evidentiary

6 objections as well.

7 THE COURT: Mr. follow my lead. Is there

8 anything else you wish to question your witness on unrelated

9 to these?

10 THE RESPONDENT: Okay. There was a personal

11 property issue.

12 THE COURT: Which I've resolved with an agreement.

13 THE RESPONDENT: Well, that was under coercive

14 conditions as I stated earlier.

15 THE COURT: All right. If no other questions, no

16 cross-exam I'm assuming?

17 THE RESPONDENT: I didn't say that, Your Honor.

18 I'm sorry.

19 THE COURT: Oh.


21 Q. Okay. On page 4, Item K says: The filing of the

22 petition in this matter, Respondent has worked and succeeded

23 to delay a resolution.

24 What is that based on? Can you elaborate on that?

25 MS. SALINGER: That question is vague. Objection,

26 Your Honor; vague.

27 THE COURT: Sustained.

28 Ill



2 Q. Okay. Now, let's see, I can't -- it's hard to say.

3 Okay, one, two, three, four, fifth paragraph down on page 4,

4 you say: Respondent has an

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9 Now, in your previous declaration from October

10 THE COURT: What is the relevance of this for

11 today's hearing?

12 THE RESPONDENT: I'd like to admit these into

13 evidence.

14 THE COURT: Offer of proof as to the relevance of

15 this for today's hearing.

16 THE RESPONDENT: Well, one, it's credibility. Two,

17 my evidentiary objections include the objection that this

18 declaration contains false evidence, misconduct evidence,

19 which violates Family Code Section 2335, if I'm not mistaken.

20 THE COURT: Okay. The Court --

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THE RESPONDENT: And that reflects

THE COURT: The Court will 352 this. I find the

23 probative value of any of this is far outweighed by the undue

24 consumption of time. Court will strike the line of

25 questioning.

26 THE RESPONDENT: Probative value of what I'm

27 saying?

28 THE COURT: Anything else for the witness?


1 All right. If no other questions, no cross-exam?


3 THE COURT: All right. Ms. thank you. You

4 may have a seat back at counsel table.

5 And Ms. Salinger, I'm assuming you did not want to

6 call Mr. to testify?


8 THE COURT: All right. Okay. Once again, the

9 Court will, for today's hearing, I'm granting requests 8A and

10 88.

11 Sir, you can pick up your property. Per your

12 agreement, get your property out of the storage by 5-31. If

13 it's at not obtained, she can take possession of it and

14 dispose of it per your agreement.

15 You get the Toyota 4Runner, the '92 4Runner. Go

16 ahead and pick up your own insurance on it. She's no longer

17 obliged to maintain the insurance for it.

18 Her request for $1,992 for storage fee is granted.

19 He can pay that forthwith.

20 And on the attorney's fees, the Court is ordering

21 the reimbursement from Respondent to Petition $4,957 for the

22 appellate fees and costs, $3,302.50 for today's. That is a

23 271 sanction. This motion should not have had to have been

24 filed, and it is for Mr. lack of cooperation. $2,500

25 on a further sanction for misconduct, total of $10,759.

26 That will be paid back at the rate of $25 per month

27 for now without prejudice to further adjustment if it's found

28 he has a greater ability to do so. That is on account


1 commencing 6-1-2012, all due if ten days late, due on the 5th

2 of each month. If a payment is not made by the 5th of the

3 month, it is all due and payable, and she can collect it via

4 whatever method on this. But I set it at a very low amount

5 because it -- I'm not at this point certain as to his ability

6 to pay a higher amount.

7 And Ms. Salinger, if you wouldn't mind, please,

8 preparing the order off your motion.

9 MS. SALINGER: I will, Your Honor. And if you can

10 have Mr. wait around so we can complete the transfer of

11 the title to the vehicle?

12 THE COURT: Sure.

13 THE RESPONDENT: Your Honor, if I may?

14 THE COURT: Would you mind waiting around so she

15 can transfer title of the vehicle to you today?

16 THE RESPONDENT: Certainly. Your Honor, real

17 quick--

18 THE COURT: Thank you both.

19 THE RESPONDENT: I'd like to request a Statement

20 of Decision for this hearing, please. We had problems last

21 time with incomplete orders, which is one of the problems I

22 had in the court of appeal that I found out.

23 THE COURT: I'm not sure a Statement of Decision is

24 required for some of these. My Statement of Decision for the

25 first two requests is I do find you have not provided a

26 declaration of disclosure as is required by 2100 et sec. You

27 have been previously ordered to provide for that. You have

28 not. So I am preventing you from putting on any evidence at


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trial. That is a remedy that is offered.

And I am allowing her to waive your preliminary

disclosure and proceed to judgement without it. The basis

for that is your failure to comply with 2100 after reasonable

requests over a year and a half ago and after the Court

actually ordered you in court to do it, and you have

continually failed by your own admission to do it.

The factual and legal basis for the storage, I

don't need one for that because you guys came to an agreement

on that.

I don't need a Statement of Decision on the Toyota

and the insurance because you guys came to an agreement on

that.

I do find that for the storage fee that because of

your lack of cooperation, she has had to maintain that in

that -- your stuff in a storage unit for some period of time

at a reasonable monthly amount and that you should reimburse

her. But for the fact that you did not cooperate with her,

she wouldn't have incurred all of those expenses. Really, in

essence, it was simply a breach of your fiduciary duty to

deal with her in good faith regarding all of that. You

didn't do that.

And as far as the attorney's fees, the Court finds

a factual basis is pled that her appellate fees were $4,957

for the appeal I think you abandoned, or at least you didn't

comply with the appellate rules. It cost her that much money

to hire Ms. Niemi to go through the process. She should not

have to pay for your failed appellate effort.


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The $3,302 given the nature and what we've gone

through today for this motion alone is appropriate as a 271

3 sanction because we're here based upon your failure to comply

4 and your breach of fiduciary duties along the way. I feel

5 that the request of 5,000, whether it's 5,000 or 2,500,

6 either one I was comfortable with. I cut their additional

7 sanction in half. That is a penalty against you in addition

8 to the actual costs she sustained. That is a penalty to be a

9 shot over your bow that you cannot behave like this and not

10 be sanctioned further.

11 The factual and legal basis for that is 271 is the

12 legal. The factual basis is you are simply being an

13 obstructionist in this entire matter. You have been an

14 obstructionist for this motion, and the factual basis is,

15 frankly, your misconduct.

16 That should do, sir. I'm ordering you to prepare

17 the Statement of Decision. You can provide it to

18 Ms. Salinger for review. And please do that within the time

19 required by the California Rule of Court. You should have

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that -- if you don't have it memorized, I'd be a little bit

surprised, but you should be able to look that up. It is a

Rule of Court.

THE RESPONDENT: On the 271 --

THE COURT: And that will be it for today. Thank

you both very much. Thank you, counsel.

THE RESPONDENT: On -- a question on the 271

27 sanctions, Your Honor, real quick, did you do the comparative

28 wealth? Did you consider that?


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THE COURT: I'm finished. No, I set it at $25 a

month due to your claim of poverty, which I don't know, but

you should be able to come up with a little bit less than a

dollar a day.

THE RESPONDENT: I don't mean in terms of the

payment, I mean in terms of the initial ruling where you're

supposed to.


Decision for me, sir.

THE RESPONDENT: What's that?


Decision for me.

THE RESPONDENT: I need that for the Statement of

Decision.

THE COURT: I told you the total attorney's fees is

$10,759 for today. Thank you. And you can pay that at 25 a

month on account. Go ahead and include that in your

Statement of Decision. Thank you.

THE RESPONDENT: But you're required to take into

account the income and assets of the party.

THE COURT: I set it at 25 a month, sir.

THE RESPONDENT: Not on the payment.

THE COURT: That's less than a dollar a day.

THE RESPONDENT: Okay. Thank you, Your Honor.


(Whereupon, proceedings concluded.)


Johnson

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CERTIFICATE OF SHORTHAND REPORTER

---ooo---

I, Tara Murany, a Certified Shorthand Reporter of

the State of California, do hereby certify that I am a

disinterested person herein; that I reported the foregoing

hearing in shorthand writing to the best of my ability; that

I thereafter caused my shorthand writing to be transcribed

into typewriting.

I further certify that I am not of counsel or

attorney for any of the parties to said hearing, or in any

way interested in the outcome of said hearing.

IN WITNESS WHEREOF, I have hereunto set my hand

this 27th day of May, 2012.

CAUSE: The Marriage of

COURT: Sacramento County Court

JUDGE: Matthew J. Gary

DATE: May 9, 2012

Tara Murany CSR No. 12892


judge matthew gary-illegal $10,000 attorney fees sanction order for judge pro tem attorney paula...

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