1 of 1 DOCUMENT

CitedAs 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.

HEADNOTES-1

CALIFORNIA OFFICIAL REPORTS HEADNOTES

(1) Costs § 11--Sanctions--Notice and HearingRequirement--Opportunity to Present Evidence.--Thetrial court erred in awarding attorney fees as sanctionsagainst a former wife because (1) there was no notice thatsanctions were an issue at a child support modificationhearing, (2) there was no hearing on sanctions, and (3)there was no evidence to support the findings on theaward of attorney fees.

[Cal. Forms of Pleading and Practice (2010) ch.226, Dissolution of Marriage: Attorney's Fees, § 226.12;11 Witkin, Summary of Cal. Law (10th ed. 2005)Husband and Wife, § 10.]

COUNSEL: Vanessa Kirker Wright for Appellant.

William August Urbany, in pro. per., for Respondent.

JUDGES: Opinion by Gilbert, P. J., with Yegan andCoffee, JJ., concurring.

OPINION BY: Gilbert

OPINION

GILBERT, P. J.--Summary proceedings arecommon in family law cases. Nevertheless, howevercertain a court may be that a party or an attorney in afamily law proceeding deserves sanctions, it must keep inmind an immutable principle that cuts across all areas ofthe law: sanctions may not be summarily imposed. Dueprocess demands more.

Petitioner Maureen J. Duris appeals a postjudgmentorder requiring her to pay $10,000 to respondent WilliamAugust Urbany as sanctions for unnecessary litigationfiled by Duris's former attorney in this dissolution ofmarriage action. We conclude, among other things, thatthe trial court erred by (1) awarding sanctions without

Page 1

first giving advance notice to Duris that sanctions werean issue at a child support modification hearing, and (2)not affording Duris a hearing to present evidence tocontest the imposition of sanctions and the amount of thefees. We reverse and remand for a new hearing.

FACTS

Duris filed a petition for dissolution of her marriageto Urbany. On June 2, 2004, the trial court entered ajudgment of dissolution. The court subsequently orderedthe custody of their two children to be shared by Durisand Urbany.

On January 29, 2009, Duris filed a motion to modifythe shared custody order. She sought "100% physical andlegal custody" of her two sons and increased childsupport. Urbany filed an opposition.

Duris represented herself, but on September 8, 2009,she substituted Jacqueline Misho as her attorney. Mishocommenced discovery and filed a motion to compelUrbany to produce documents. The trial court denied themotion. It ordered the parties to meet and confer tocomplete discovery.

On November 16, 2009, Duris substituted herself inplace of Misho.

On November 23, 2009, the trial court held a hearingon Duris's custody and support motion. At the beginningof this proceeding, it described the issue to be decided as"modification of child support." After the completion ofthe testimony on the child support issues, the court said itwould impose $10,000 in sanctions against Duris becauseof "unnecessary legal activity" filed by Misho. The courtreferred to Misho's prior motion to compel as a "fee sink"that "nonetheless required response on the other side." Itsaid, "And for that reason of the approximately $25,000that 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 unemployedattorney, trying to find a job, and could not pay $10,000and support her children. She said, "How am I beingpenalized for hiring [Misho]? How was I supposed toknow? I thought she was the best there was." The courtdid not take evidence on the sanctions and attorney feeissues.

DISCUSSION

Notice, Hearing and Evidence for Findings

Duris contends the trial court erred in awardingattorney fees as sanctions because (1) there was no noticethat sanctions were an issue at the child support hearing,(2) there was no hearing on sanctions, and (3) there wasno evidence to support findings on the award of attorneyfees. We agree.

Notice

The trial court awarded attorney fees as sanctionsagainst Duris because of the conduct of her priorattorney. But "for awards based principally on thewrongful conduct of a party or attorney, notice and ahearing [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 ofimposition of sanctions is mandated not only by statutebut also by the due process clauses of both state andfederal 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 ofsanctions. The trial court summarily awarded thembecause of actions involving a prior proceeding in thiscase. But this hearing involved a different issue. Durisfiled a motion to modify child support. In his response,Urbany could have raised attorney fees and sanctions asan issue if he had completed the information on point 15of the income and expense declaration form (JudicialCouncil form FL-150). But he did not fill out that portionof that document and he never filed a notice of motion forsanctions for the November 23 hearing. The court'sminute orders describe the hearing only as a motion tomodify child support; there is no reference to sanctions.At the beginning of the hearing, the court said the issuewas child support; it did not mention sanctions.Consequently, Duris had no warning that this issue wouldbe decided. "[C]ase authority condemns imposition ofsanctions 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. Thetrial court first raised the sanctions issue during closingarguments after it had completed the evidentiary hearingon support modification. It then summarily imposedsanctions finding that Misho's motion to compeldiscovery was unnecessary litigation. Duris was at a

Page 2

substantial disadvantage because the court raised theissue about Misho's conduct when Misho was not present.Because Duris appeared in propria persona and had noprior notice, she had no opportunity to subpoena Mishoto explain the reasons for filing the discovery motion.Facts known by Misho were relevant. As Duris's counsel,Misho was legally responsible for developing thediscovery 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 thediscovery motion might lead to admissible evidence is animportant factor in deciding whether sanctions areappropriate. (Stewart v. Colonial Western Agency, Inc.(2001) 87 Cal.App.4th 1006, 1013 [105 Cal. Rptr. 2d115].)

Misho and Duris had no forum to present oppositionevidence. In a proceeding to determine whether anattorney's conduct justifies sanctions, there must be asufficient opportunity to present opposing evidence. (Inre Marriage of Quinlan (1989) 209 Cal.App.3d 1417,1422 [257 Cal. Rptr. 850]; see also Lesser v. HuntingtonHarbor Corp. (1985) 173 Cal.App.3d 922, 933 [219 Cal.Rptr. 562] [two days' notice for a sanctions hearing isinsufficient time to prepare declarations showing thatlitigation was filed in good faith].) Duris had no time tofile declarations, and Misho was denied an opportunity tochallenge the accusation against her and defend herreputation. (In re Marriage of Flaherty (1982) 31 Cal.3d637, 652 [183 Cal. Rptr. 508, 646 P.2d 179] [sanctionsdetermination may harm attorney's professionalreputation]; see also Annex British Cars, Inc. v. Parker-Rhodes (1988) 198 Cal.App.3d 788, 793 [244 Cal.Rptr.48] ["it is basic that counsel must have the opportunity tobe heard on the issue before sanctions can be imposed"].)

As Duris correctly notes, a hearing would also assistthe trial court in determining who should pay thesanctions and the size of the award. The court may decidethat (1) the attorney who filed the challenged litigationshould pay (In re Marriage of Quinlan, supra, 209Cal.App.3d at p. 1422), or (2) the amount of sanctionsshould be "scaled to the payor's ability to pay" (In reMarriage of Falcone & Fyke (2008) 164 Cal.App.4th814, 828 [79 Cal. Rptr. 3d 588]). Here the courtacknowledged that Duris was not working. Duris's claimthat paying $10,000 would hamper her ability to supporther children is a factual issue that cannot be decidedduring the brief colloquy of a closing argument. (In reMarriage 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 onattorney fees are supported by evidence in the record.Duris disagrees. She claims the court acted withouttaking evidence and that Urbany's appellate brief does notcomply with the rules of court. She is correct. Durisprepared a two-volume appellant's appendix. Urbanydoes not challenge the completeness of it or cite to asingle document in it. Most of the factual assertions in hisbrief involve allegations against Duris that are notaccompanied by any citations to the record. (CrestmarOwners Assn. v. Stapakis (2007) 157 Cal.App.4th 1223,1232 [69 Cal. Rptr. 3d 231] [appellate courts are notrequired to consider issues that are not supported byreferences to appropriate authority and citations to therecord].)

Even so, Duris's claims also are well taken on themerits. The trial court said Urbany "expended" $25,000in attorney fees, and consequently Duris should "absorb"$10,000 of that sum. But Urbany does not cite anyevidence in the record to support the finding that heincurred or paid $25,000 to his attorney. Paul Capritto,Urbany's counsel, filed a trial brief on the day of thehearing. In a passing comment in that brief, he requestedthe court award $25,000 in attorney fees. A closing briefis 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 abrief 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 adeclaration setting forth his hours, his hourly rates, adescription of his services, or what Urbany paid as fees.Urbany's income and expense declaration sets forth noamounts incurred as fees.

The absence of evidence "disclosing the nature andextent of counsel's services" hampered the trial court'sability to make fact findings. (In re Marriage of Cueva(1978) 86 Cal.App.3d 290, 303 [149 Cal. Rptr. 918].) Itcould not impose monetary liability based on speculationor on opposing counsel's unsworn statements. (In reMarriage of Reese & Guy, supra, 73 Cal.App.4th at p.1222, fn. 5.) "Without ascertaining whether or at whathourly rate the work for which reimbursement was soughtwas actually done, much less that the work was'reasonably necessary' ... , the trial court could not

Page 3

properly find that imposing" liability for the otherspouse's legal fees was appropriate. (In re Marriage ofKeech (1999) 75 Cal.App.4th 860, 869 [89 Cal. Rptr. 2d525].)

Duris was prevented from presenting evidence tochallenge the basis for the award, the reasonableness ofthe fees and the hourly rates. This summary imposition ofattorney fees as sanctions is not consistent with due

process procedural protections. (In re Marriage ofFlaherty, 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 instructionsto conduct a new hearing with proper notice. Costs onappeal are awarded in favor of appellant.

Yegan, J., and Coffee, J., concurred.

Page 4

Paula Salinger Charged with Obstruction of Justice Crimes by Family Court WatchdogSacramento Divorce Attorney Paula Salinger Accused of Criminal Acts Against Domestic Violence Victim.

By Cathy Cohen (Open Post) July 14, 2014 at 4:46pm

Woodruff, O'Hair, Posner & Salinger Inc Partner

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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 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 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

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.

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

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

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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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.

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.

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 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 shows, Salinger's threat coerced the victim and witness to drop the contempt matter.

Obstruction of Justice

State Bar Chief Trial Counsel Jayne Kim has been criticizedfor not enforcing state attorney ethics laws against lawyers

- like Paula Salinger - for misconduct against pro per litigants.

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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 in-depth 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.

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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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

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WOODRUff, O'HAIR, POSNER & SALINGER, INC.

D. Thomas Woodruff. C.F.L.S.", AAML"*

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

Paula D. Salinger

PO Box 60662 Sacramento, CA 95860

Dear-

A LAW CORPORATION

2251 Fair Oaks Boulevard, Suite 100 Sacramento. California 95825

Telephone : (916) 920-0211

Facsimile: (916) 920 0241

Email: paula@woplaw.com

October 28, 2010

VIA EMAIL TRANSMISSIO

Re: Marriage of-

As 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, 201 O 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.

pds:sbo cc:

Paula D. Salinger

• Certified Family Law S.oecralisl. The Slate Bar of Califomia Boarr, >f Legal Speoalzat1on ··Fellow. Amencan Academy of Matnmonia/, 1wyers

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).

3 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).

End of Document © 2012 Thomson Reuters. No claim to original U.S.

Government Works.

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 1

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

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 1

17 Cal. Jur. 3d Criminal Law: Crimes Against Admin. of Justice § 608

California Jurisprudence 3d

Database updated May 2012Criminal 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 JusticeD. 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 awitness 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 anunderstanding 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 beno 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

Footnotes1 Pen. Code, § 138, subd. (a).

As to bribery, generally, see §§ 526 to 553.

2 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.

3 Pen. Code, § 133.

End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works.

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

© 2012 Thomson Reuters. No claim to original U.S. Government Works. 1

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

California Jurisprudence 3d

Database updated May 2012Criminal 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 JusticeD. 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 awitness 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 crimefrom 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

Footnotes1 Pen. Code, § 136.1, subd. (a).

2 In re Holmes, 145 Cal. App. 3d 934, 193 Cal. Rptr. 790 (2d Dist. 1983).

3 Pen. Code, § 136.1, subd. (a)(3).

4 Pen. Code, § 136.1, subd. (b)(1).

5 Pen. Code, § 136.1, subd. (b)(2).

6 Pen. Code, § 136.1, subd. (b)(3).

End of Document © 2012 Thomson Reuters. No claim to original U.S. Government Works.

2622. Intimidating a Witness (Pen. Code, § 136.1(a) & (b))

The defendant is charged [in Count ] with intimidating awitness [in violation of Penal Code section 136.1].

To prove that the defendant is guilty of this crime, the People mustprove 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 soughtto influence> from (attending/ [or] giving testimony at)

<insert type of judicial proceeding or inquiryauthorized 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 soughtto influence> from making a report that (he/she/someoneelse) was a victim of a crime to <insert type ofoffıcial 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 soughtto influence> from cooperating or providing information sothat a (complaint/indictment/information/probationviolation/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 soughtto influence> from (arresting[,]/ [or] (causing/ [or] seeking)the arrest of [,]) someone in connection with a crime;]

2. <insert name/description of person defendant

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allegedly sought to influence> was a (witness/ [or] crimevictim);

AND

3. The defendant knew (he/she) was (trying to (prevent/ [or]discourage)/(preventing/ [or] discouraging))<insert name/description of person defendant allegedly soughtto influence> from <insert appropriatedescription from element 1> and intended to do so.

[A person acts maliciously when he or she unlawfully intends toannoy, harm, or injure someone else in any way, or intends tointerfere in any way with the orderly administration of justice.]

[As used here, witness means someone [or a person the defendantreasonably believed to be someone]:

<Give the appropriate bracketed paragraph[s].>

• [Who knows about the existence or nonexistence of factsrelating to a crime(;/.)]

[OR]

• [Whose declaration under oath has been or may bereceived 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 theauthority of any state or federal court.]]

[A person is a victim if there is reason to believe that a federal orstate crime is being or has been committed or attempted againsthim or her.]

[It is not a defense that the defendant was not successful inpreventing or discouraging the (victim/ [or] witness).]

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[It is not a defense that no one was actually physically injured orotherwise intimidated.]

New January 2006

BENCH NOTES

Instructional Duty

The court has a sua sponte duty to give this instruction defining the elementsof the crime.

In element 1, alternative 1A applies to charges under Penal Code section136.1(a), which prohibits “knowingly and maliciously” preventing orattempting to prevent a witness or victim from giving testimony. Alternatives1B 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 ofeither subdivision (a) or (b) is done “knowingly and maliciously,” and one ofthe other listed sentencing factors is proved. An argument can be made thatthe knowledge and malice requirements apply to all violations of Penal Codesection 136.1(b), not just those charged with the additional sentencing factorsunder subdivision (c). Because the offense always requires specific intent, thecommittee has included the knowledge requirement with the specific intentrequirement 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 malicerequirement also applies to all violations of subdivision (b), the court shouldgive the bracketed word “maliciously” in element 1, in alternatives 1Bthrough 1D, and the definition of this word.

If the defendant is charged with one of the sentencing factors in Penal Codesection 136.1(c), give CALCRIM No. 2623, Intimidating a Witness:Sentencing Factors. If the defendant is charged with the sentencing factorbased on a prior conviction, the court must give both CALCRIM No. 2623and CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, unless thecourt has granted a bifurcated trial on the prior conviction or the defendanthas stipulated to the conviction.

Note that Penal Code section 136.1(a)(3) states, “For purposes of thissection, evidence that the defendant was a family member who interceded inan effort to protect the witness or victim shall create a presumption that theact was without malice.” It is unclear whether the court must instruct on thispresumption.

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AUTHORITY

• Elements. Pen. Code, § 136.1(a) & (b).

• Malice Defined. Pen. Code, § 136(1).

• Witness Defined. Pen. Code, § 136(2).

• Victim Defined. Pen. Code, § 136(3).

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

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes AgainstGovernmental 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 OFFENSESA 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 isalso charged with one of the sentencing factors in Penal Code section136.1(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 theoffenses under subdivisions (a) and (b) are lesser included offenses. Thecourt must provide the jury with a verdict form on which the jury willindicate if the prosecution has proved the sentencing factor alleged. If thejury finds that this allegation has not been proved, then the offense should beset at the level of the lesser offense.

The misdemeanor offense of knowingly inducing a false statement to a lawenforcement official in violation of Penal Code section 137(c) is not a lesserincluded offense of Penal Code section 137(b) because the latter offenselacks the element that the defendant must actually cause a false statement tobe made. (People v. Miles (1996) 43 Cal.App.4th 575, 580 [51 Cal.Rptr.2d52].)

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RELATED ISSUESPenal Code Sections 137(b), 136.1, and 138

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

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2621. Influencing a Witness by Fraud (Pen. Code, § 137(b))

The defendant is charged [in Count ] with using fraud toinfluence a person to (give false (testimony/ [or] information)/ [or]withhold true (testimony/ [or] information)) [in violation of PenalCode section 137(b)].

To prove that the defendant is guilty of this crime, the People mustprove that:

1. The defendant used fraud against <insertname/description of person defendant allegedly sought toinfluence>;

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 materialinformation about a crime to/ [or] withhold true materialinformation about a crime from) a law enforcementofficial.]

A person uses fraud when he or she makes a false statement,misrepresents information, hides the truth, or otherwise doessomething 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] AttorneyGeneral[,]/ [or] deputy attorney general[,]/ [or]<insert title of peace offıcer included in Pen. Code, § 830 et seq.>) isa law enforcement official.]

[The People do not need to prove that <insert name/description of person defendant allegedly sought to influence>

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

New January 2006

BENCH NOTESInstructional Duty

The court has a sua sponte duty to give this instruction defining the elementsof the crime.

Give the bracketed sentence that begins with “The People do not need toprove that” if the evidence shows that the testimony or information of thealleged target was not affected.

AUTHORITY• Elements. Pen. Code, § 137(b).

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

• Law Enforcement Official Defined. Pen. Code, § 137(e).

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

Secondary Sources

2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes AgainstGovernmental Authority, § 12.

LESSER INCLUDED OFFENSESThe misdemeanor offense of knowingly inducing a false statement to a lawenforcement official in violation of Penal Code section 137(c) is not a lesserincluded offense of section 137(b) because the latter offense lacks theelement 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 ISSUESDeceiving 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 orexhibits any false statement, representation, token, or writing, to anywitness or person about to be called as a witness upon any trial,proceeding, inquiry, or investigation whatever, authorized by law, with

CALCRIM No. 2621 CRIMES AGAINST GOVERNMENT

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

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