The Orange County court system posts family law tentative rulings prior to any hearing. Judge Glenn Salter’s are posted below and reveal that Salter seems to have a procedural and substantive due process problem.
CA family code section 271 sanctions cannot be imposed without NOTICE and an opportunity to be heard. The due process clauses of the United States and California Constitutions require that a party be given reasonable notice of a judicial proceeding, (Scott v. McNeal (1894) 154 U.S. 34, 46 [38 L. Ed. 896, 14 S. Ct. 1108]; Harrington v. Superior Court (1924) 194 Cal. 185, 188 [228 P. 15].) Reasonable notice suggest an opportunity to be heard and an opportunity to respond to allegations.
The relevant statute governing section 271 sanctions suggests that there needs to be a formal 271 sanctions motion to awards sanctions under the statute.
FAMILY.CODE SECTION 270-274
270. If a court orders a party to pay attorney's fees or costs under this code, the court shall first determine that the party has or is reasonably likely to have the ability to pay. 271. (a) Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award. (b) An award of attorney's fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard. (c) An award of attorney's fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party's share of the community property. 272. (a) Where the court orders one of the parties to pay attorney' s fees and costs for the benefit of the other party, the fees and costs may, in the discretion of the court, be made payable in whole or in part to the attorney entitled thereto. (b) Subject to subdivision (c), the order providing for payment of the attorney's fees and costs may be enforced directly by the attorney in the attorney's own name or by the party in whose behalf the order was made. (c) If the attorney has ceased to be the attorney for the party in whose behalf the order was made, the attorney may enforce the order only if it appears of record that the attorney has given to the former client or successor counsel 10 days' written notice of the application for enforcement of the order. During the 10-day period, the client may file in the proceeding a motion directed to the former attorney for partial or total reallocation of fees and costs to cover the services and cost of successor counsel. On the filing of the motion, the enforcement of the order by the former attorney shall be stayed until the court has resolved the motion. 273. Notwithstanding any other provision of this code, the court shall not award attorney's fees against any governmental agency involved in a family law matter or child support proceeding except when sanctions are appropriate pursuant to Section 128.5 of the Code of Civil Procedure or Section 271 of this code. 274. (a) Notwithstanding any other provision of law, if the injured spouse is entitled to a remedy authorized pursuant to Section 4324, the injured spouse shall be entitled to an award of reasonable attorney's fees and costs as a sanction pursuant to this section. (b) An award of attorney's fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard. (c) An award of attorney's fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party's share of the community property. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award.
In Juergens vs. Juergens there was no sanctions motion filed by the other party, yet Salter awarded 271 sanctions without NOTICE or opportunity to be heard. In re Marriage of Duris and Urbany (2011) 193 Cal.App.4th 510, SPECIFIED that there needs to be the appropriate notice and opportunity to be heard. In that case the court acknowledged that summary proceedings are common in family law cases but basic due process grounds requiring advance notice to be heard. The trial court erred by awarding sanctions without first giving advance notice to the wife that sanctions were an issue in a post-judgment child support modification hearing. Wife was a pro per attorney but had hired an experienced family law attorney who immediately filed an aggressive discovery motion that the trial court found unnecessary. No notice of the issue of sanctions was given; thus, neither the wife nor the attorney (no longer representing wife at the time of the hearing) was given an opportunity to justify any good faith reasons for the motion or to attempt to justify the attorney’s conduct in filing the motion. Both the imposition of monetary sanctions and the reputation of the disparaged attorney warranted an opportunity to be heard and an opportunity to challenge the accusations of improper litigation conduct. Absence of advance notice caused the reversal.
Tentative Rulings, DEPT L-60,
Judge Glenn R. Salter
Date: July 25, 2014
|1||Bankhead v. Houston12P000887||Each side is ordered to pay one-half of the CCI fees totaling $944.09 forthwith.|
|2||Bivins v. Bivins09D005973||Respondent filed a motion to change venue to Washington. No opposition has been filed. It is unclear whether petitioner has been properly served.|
|4||Garner v. Garner05D005445||The court has not received any notice whether a broker has been retained to sell the family residence.|
|5||Humphrey v. Humphrey07D007373||Off calendar. Petitioner has agreed to pay all CCI fees forthwith.|
|6||Juergens v. Juergens05D009340||Respondent’s motion to set aside and vacate the findings and order after hearing filed December 27, 2013 is denied.The motion is premised on petitioner’s assertion he was not served with the proposed order after hearing and never had a chance to point out the mathematical and other errors. The record reflects, however, that petitioner filed “formal objections to proposed findings and order” on November 25, 2013, a month prior to the signing and filing of the order. Petitioner’s motion, therefore, appears to misrepresent the state of the record and the actions of respondent’s counsel.The motion is also untimely and without statutory authority. See respondent’s responsive declaration filed July 14, 2014.
In her responsive declaration respondent requests $5,500 in attorney fees and costs pursuant to Family Code sections 271, 2030, and 2032. Counsel attached a declaration supporting the award of attorney fees and sanctions. It appears the issues raised in this motion are substantially the same issues petitioner has repeatedly argued, unsuccessfully. Respondent should not have to bear the costs and attorney fees in defending against this motion, especially given petitioner earned over $718,000 last year and chooses to make voluntary capital loan repayments at Deloitte. Respondent also should not have to bear these costs and attorney fees when the motion is based on an apparent misrepresentation of fact.
The court orders petitioner to pay respondent $5,500 in sanctions pursuant to family Code section 271 within 10 days. The court finds the sanction will not impose an unreasonable financial burden on petitioner.
|8||Madsen v. Madsen10D003726||Motion of minor’s counsel Wayne Phillips to withdraw as attorney of record is granted. The court notes no opposition has been received.|
|9||Michaels v. Michaels13D005743||What is the time estimate on this motion to enforce settlement? The parties may contact the clerk to set a date for an evidentiary hearing, or the parties may simply submit on the pleadings.However, based upon the court’s preliminary reading of the papers it appears the motion should be denied. CCP 664.6. The request for sanctions would be reserved for trial.|
|11||Oliva v. Oliva10D001239||Each side is ordered to pay one-half of the CCI fees totaling $901.96 forthwith.|
|12||Phan v. Mai12D011818||Respondent’s motion to set aside default and default judgment is granted. The proposed response received June 16, 2014, as part of the motion is deemed filed today.Pursuant to Code of Civil procedure section 473, subdivision (c)(1)(c), respondent is ordered to make a contribution of $1,000 to petitioner. Fees to be paid at the rate of $250 per month beginning August 1, 1014.|
|14||Rios v. Gonzalez12FL000880||Motion to dismiss elder abuse restraining order by the restrained party is denied.|
|16||Tran v. Hua13D006392||Petitioner’s motion to compel further responses is granted. Further responses shall be served within 10 days. Sanctions in the sum of $1,090 are payable by respondent within 10 days.The court notes no opposition has been received.|