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2012 MAY -9 AM If: 29

Telephone: (916) Fax: (

FAH!L Y LAW #6 �SUPERIOR COURT Of ¢Al1FORHIA

COUNTY OF SACRAMENTO Email: . gmail.com

IN PRO PER

II

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY O F SACRAMENTO

In re the Marriage of: Case No.:

RESPONDENT'S SUPPORTING MEMORANDUM IN OPPOSITION TO PETITIONERS' MARCH 28, 2012 MOTION FOR SEVEN ORDERS

Petitioner:

and

Respondent: Date: May 9, 2012 Time: 9:00a.m. Dept: 121

I. INTRODUCTION

This is a marital dissolution matter which began in May 2010. The case

involves complex issues including deferred compensation, the valuation of work

product , intellectual property and a business. (See Respondent's Request For

Judicial Notice in Opposition To Petitioner's March 28, 2012 Motion For Seven

Orders, ("RJN"), RJN #2, p. 24 lines 8-25, p. 29 lines 21-28, p. 30 lines 1-12, p. 33

lines 17-28, p. 34 lines 1-6, p. 1 Item 4-E lines 19-20.) Petitioner is represented b

- 1 ..:. RESPONDENT'S SUPPORTING MEMORANDUM IN OPPOSITION TO PETITIONER'S MARCH 28, 2012

MOTION FOR SEVEN ORDERS

- 2 - RESPONDENT’S SUPPORTING MEMORANDUM IN OPPOSITION TO PETITIONER’S MARCH 28, 2012

MOTION FOR SEVEN ORDERS

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a veteran family law attorney and judge pro tem. (Declaration of in

Opposition to Petitioner’s March 28, 2012 Motion for Seven Orders (“

Dec.”), ¶ 3, 4 and Exhs. A, B (filed herewith).)

Respondent is indigent and involuntarily pro per because Petitioner is the

managing spouse, controls all community assets and income, and refuses to

release community funds to enable Respondent to retain counsel. (See RJN #6 p.

11 ¶ 29; RJN #1 p. 8 ¶ 27; RJN #2 p. 1 ¶ 1; RJN #7 Exh. L.) Petitioner also refuses

to provide Respondent with copies of household financial records she controls and

that he requires to complete his declarations of disclosure. (See, e.g.,

Dec. ¶ 29, 30 and Exhs. L, M.) The record reflects that, since before the case was

filed in May 2010, Petitioner has carried out a scheme to misappropriate

community assets and dispossess Respondent of his property and possessory

rights. (See, e.g., Dec. ¶ 27-30 and Exhs. F-M.)

In the present proceeding, Petitioner seeks harsh and significant evidentiary

and monetary sanctions, and other relief. Petitioner also effectively requests the

Court’s ex post facto acquiescence to her January 2011 unilateral division and

transfer of community property - her third and fourth unpunished violations of the

automatic temporary restraining orders since the case began. (See RJN #1) On its

face, Petitioner’s pleading is void. It does not comply with state and local rules of

court and other procedural statutes. The errors are substantive, non-trivial, and

unreasonably obstruct Respondent’s ability to respond to the motion.

It also is reasonable to infer that the errors are deliberate. The court rule and

statute violations work to Petitioner’s advantage and disadvantage Respondent.

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MOTION FOR SEVEN ORDERS

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The pleading was drafted by a veteran family law attorney and judge pro tem. ( .

Dec. ¶¶ 3, 4 and Exhs. A, B.) The attorney has made virtually identical

errors in all prior court filings. The errors are calculated to gain a litigation

advantage by, inter alia, precluding Respondent’s ability to rebut, impeach or

challenge inadmissible evidence under Code of Civil Procedure §§ 436 and 431.10,

and Cal. Rules of Court Rule 3.1354(b)(2)(written objections must state line

number of material objected to).

As set forth below, the strategy sets a trap where Respondent cannot lawfully

make written evidentiary objections - and the objections are therefore waived, and

the inadmissible evidence admitted. By law, under Code of Civil Procedure §§

437c(b)(5) and 437c(d) objections not made are waived. (See also Weil & Brown,

Cal. Prac. Guide: Civ. Pro. Before Trial (TRG-2011) ¶10:210 [failure to make

evidentiary objections waives right to challenge ruling based on inadmissible

evidence].)

Taken together with Petitioner’s prior defective court submissions, the

motion constitutes repeated and deliberate violations of court rules and is

therefore sanctionable conduct under Code of Civil Procedure §§ 583.150 and

575.1. For the reasons set forth herein, Respondent respectfully requests that the

motion be dismissed with prejudice, denied or stricken as a sanction for

Petitioner’s serial violations of court rules and statutory pleading requirements.

Alternatively, the motion should be dismissed, denied or stricken until it complies

with the law.

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MOTION FOR SEVEN ORDERS

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II. PETITIONER’S CURRENT AND PRIOR VIOLATIONS OF COURT RULES STATUTES, and DECISIONAL LAW

A. Violations of Court Rules and Family Code § 2335

1. Court Rule and Family Code Violations in the Present Proceeding

Petitioner’s pending motion for seven orders relies in large part on her six-

page declaration. The declaration was filed without line numbers in the left margin

in violation of Cal. Rules of Court (CRC) Rule 2.108(4) , is single-spaced in violation

of CRC Rule 2.108(1) and does not contain a footer, violating Rule 2.110. The

violations constitute a violation of Local Rule 3.02 [failure to comply with CRC].

The two declarations included with Petitioner’s motion contain false,

immaterial, or irrelevant material facts, and omit important material facts. ( .

Dec., ¶ 5.) The false, immaterial, irrelevant and omitted material facts are

dispositive to the orders requested by Petitioner. (Id. ¶ 6.) Removal of the

improper, inadmissible material and inclusion of the omitted material will render

both declarations insufficient to support the relief requested in the motion. (Id.).

The declaration submitted by Petitioner also contains fabricated, or

otherwise inadmissible misconduct, or “fault” evidence. (Id., ¶ 7.) Subject to

statutorily proscribed exceptions, the use of fault evidence is prohibited by Family

Code § 2335. The impropriety and consequences of attempting to use fault

evidence is emphasized throughout the leading family law treatise. (See Hogoboom

& King, Cal. Prac. Guide: Family Law (The Rutter Group 2011) ¶¶ 2:34, 3:239-40;

6:823; 13:90; 13:121; 14:265.1.) “Any attempt to ‘sneak in’ fault evidence in

violation of § 2335 is likely to result in strong reprimand and may even draw

monetary sanctions (Fam. C. § 271).” (Id., at ¶ 13:122, emphasis in original). The

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MOTION FOR SEVEN ORDERS

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fault evidence recited by Petitioner does not fall within the statutorily proscribed

exceptions, which arise in domestic violence, child custody and specified support

matters. Family Code §§ 3011(b)&(d), 3041, 4320(i),(m), 4325 and 6300. (See also

Hogoboom & King, ¶¶ 6:823.1-824.6; 11:195).

If the Court does not strike the motion with prejudice, to effectively respond

to Petitioner’s motion, to preserve his rights of trial and appellate review, and to

provide the basis for a sanctions request based on the use of prohibited fault

evidence and other grounds, Respondent will concurrently file with his response

written evidentiary objections under Code of Civil Procedure §§ 436 and 431.10.

Dec., ¶ 9, 12.) In addition to general and specific Family Code fault

evidence objections, Respondent will make written Evidence Code-based

objections. (Id.). Cal. Rules of Court, Rule 3.1354(b)(2) requires for each objection

reference to the line number of the objectionable material. (See also Weil & Brown,

Cal. Prac. Guide: Civ. Pro. Before Trial (TRG-2011) ¶9:102.5 [reference to page and

line number required for evidentiary objections].) It is self-evident that until

Petitioner’s declaration is drafted in compliance with CRC Rule 2.108(4),

Respondent cannot make lawful and effective evidentiary objections.

In responding to Petitioner’s motion, Respondent also cannot file a

supporting memorandum which complies with Cal. Rules of Court until

Petitioner’s declaration complies with Cal. Rules of Court Rule 2.108(4).

Respondent’s memorandum will reference specific portions of Petitioner’s

declaration. ( . Dec., ¶ 15.) Cal. Rules of Court Rule 3.1113(k) requires

such references to specify the paragraph or line number in the declaration.

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MOTION FOR SEVEN ORDERS

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In addition, the points and authorities filed with Petitioner’s motion do not

comply with Cal. Rules of Court Rule 3.1113(b) [memorandum must contain

statement of facts and concise statement of the evidence relied on]. The

memorandum appears to misstate the record and to rely on false, misleading or

omitted material facts, and makes no specific, identifiable references to the record.

Respondent cannot effectively respond to, and rebut or impeach the references

referred to in Petitioner’s memorandum until it complies with Rule 3.113(b) .

Petitioner’s memorandum also violates Cal. Rules of Court Rule 3.113(k)

[reference to supporting declarations must reference page, paragraph and line

number]. The memorandum appears to reference Petitioner’s declaration and

exhibit, but does not provide the information required by Rule 3.1113(k).

2. Court Rule and Family Code Violations in Prior Proceedings

a. The Defective September 2010 Motion to Compel

On September 24, 2010 Petitioner filed a motion to compel which relied on a

declaration with the same defects and violations of Cal. Rules of Court and the

Family Code as the current declaration. (See RJN #3, Dec. of p. 1-2.)

The motion to compel requested attorney fee sanctions. Petitioner did not file

an income and expense declaration as required by CRC Rules 5.118(b) and

5.128(b), and Local Rule 14.11(9).1 (RJN #3.) The circumstances - including the

training, experience and related conduct by Petitioner’s attorney - logically infer

1 The only arguable exception to the mandatory income and expense declaration requirement is where the declaration is already on file with the court from prior proceedings. See Burkle v. Burkle (2006) 144 Cal.App.4th 387; Marriage of Corona (2009) 172 Cal.App.4th 1205, 1227 [failure to file income and expense declaration excused where court had several years of income and expense declarations

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MOTION FOR SEVEN ORDERS

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that the income and expense declaration omission was deliberate and calculated to

gain a litigation advantage by, inter alia, concealing from the Court the stark

economic disparity between the parties.

b. The October 2010 Defective Responsive Declaration

On October 14, 2010 Petitioner filed a responsive declaration with the same defects

and violations of court rules and the Family Code as the current declaration. (RJN

#4 Dec. of pp. 1-5.) The Family Code § 2335 fault evidence

violations were particularly egregious in the Oct. 14 responsive declaration, and

Respondent attempted written evidentiary objections to the declaration. (RJN #5.)

The Court failed or refused to rule on the objections.

Taken together with Petitioner’s declaration in the current matter, where,

among other improbable claims, Petitioner claims to have “discovered items which

are used to create explosives…among Respondent’s personal property,” the

content of the declarations show by Petitioner an unusual preoccupation with

bringing misconduct evidence before the court. The preoccupation should call

Petitioner’s credibility into question. (See, generally, Hogoboom & King, Cal. Prac.

Guide: Family Law (TRG 2011) ¶ 7:296.15 and ¶ 7:493 [in child custody context,

court may question credibility of party with general recalcitrance and

preoccupation to submit irrelevant fault evidence].)

B. Violations of Decisional Law

1. The Present Proceedings

prior to hearing at issue]. Until the present proceeding, Petitioner did not have an income and expense declaration on file with the court.

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Petitioner’s motion includes a request for $7,290 in attorney fee sanctions

and costs. The attorney fees accounting submitted by Petitioner’s trial court

attorney is unsworn. An unsworn attorney fee request is invalid. In re Marriage of

Duris and Urbany (2011) 193 Cal.App.4th 510, 515; In re Zeth S. (2003) 31 Cal.4th

396, 413-414, fn. 11. [“It is axiomatic that the unsworn statements of counsel are

not evidence”].

2. Prior Proceedings

a. The September 2010 Defective Motion to Compel

On September 24, 2010 Petitioner filed a motion to compel which included a

request for attorney fee sanctions which was unsworn (RJN #3.), and did not

include an income and expense declaration.

b. The Four October 2010 Defective Responsive Declarations

On Oct. 29, 2010 Petitioner filed four responsive declarations. Each

declaration requested attorney fee sanctions. None of the declarations included an

accounting of the attorney fees requested. None of the declarations included a

sworn accounting of the attorney fees requested (RJN #9, 10, 11, 12.), nor an

income and expense declaration.

III. PETITIONERS REPEATED AND DELIBERATE VIOLATIONS OF COURT RULES, STATUTES AND DECISIONAL LAW WARRANT SANCTIONS OR

OTHER RELIEF

Petitioner’s violation of court rules and statutory law are significant, relevant

and not trivial. Petitioner’s history of consistent, repeated violations strongly infers

that the violations are deliberate and calculated to gain a litigation advantage. The

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MOTION FOR SEVEN ORDERS

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natural and expected consequence of the violations includes impeding and

obstructing Respondent’s due process and appeal rights.

Code of Civil Procedure, section 583.150 permits the court to dismiss an

action or impose other sanctions under local rules adopted by the court pursuant

to Section 575.1 or by the Judicial Council pursuant to statute, or otherwise under

the inherent authority of the court. Code of Civil Procedure, section 575.1 provides

for the presiding judge of each superior court to promulgate local rules designed to

expedite and facilitate the business of the court. Sacramento County Superior

Court Local Rule 3.02 states:

Failure to comply with any Local Rule or California Rules of Court may subject the party to sanctions pursuant to California Rules of Court, rule 2.30; Code of Civil Procedure sections 177.5, 575.2.

Petitioner’s clear violations of Cal. Rules of Court violate Local Rule 3.02. Rule 3.02

and Code of Civil Procedure § 575.2 authorize the court to strike out all or part of

any pleading, or dismiss an action or proceeding or any part thereof for non-

compliance with local rules. CCP § 583.150 permits a court to dismiss an action or

impose other sanctions for local and state court rule violations under the inherent

power of the court. CCP § 436(b) permits a court to - at any time in its discretion

and upon terms it deems proper – strike all or any part of any pleading not drawn

or filed in conformity with the laws of the state or a court rule. (See Weil & Brown,

Cal. Prac. Guide: Civ. Pro. Before Trial (TRG-2011) ¶ 9:1275-1282; 11:280.7a-

11:280.10a.) Violation or disregard of local rules is ground by itself for denial of a

motion. (Id. ¶ 9.9.1.)

II

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In the context of a civil action, a terminating sanction of the entire action,

should only be ordered where there has been previous non-compliance with rules

or orders and it appears less severe sanction would not be effective. Wantuch v.

Davis (App.2 Dist. 1995) 32 Cal.App.4th 786. As set forth above, and in the

declaration submitted in support hereof, Petitioner has previously, and serially not

complied with both state and local court rules. If an entire civil action is subject to

dismissal for repeated court rule violations, it is fair and appropriate to dismiss or

deny, with prejudice, Petitioner's motion. These remedies are applicable to family

court cases. (Family Code§ 210; Cal. Rules of Court Rule 5.20-21; Cal. Rules of

Court Rule 3.10.)

IV. CONCLUSION

Over the history of this case, Petitioner has been rewarded and gained

litigation advantage for her serial misconduct. In view of the above facts and

authorities, and the attached Declaration of Respondent submits

that Petitioner's motion is subject to dismissal with prejudice, denial, or should

otherwise be stricken for Petitioner's willful and repeated failures to comply with

local and state rules of court, statutes and decisional law. Respondent hereby

respectfully requests dismissal of the motion with prejudice, denial of the motion,

or that the motion be stricken on these grounds.

24 Dated: May 2, 2012 Respectfully submitted,

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RESPONDENT'S SUPPORTING MEMORANDUM IN OPPOSITION TO PETITIONER'S MARCH 28, 2012

MOTION FOR SEVEN ORDERS