judge matthew gary-illegal $10,000 attorney fees sanction order for judge pro tem attorney paula...
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Illegal $10,000 attorney fee sanction order for judge pro tem attorney Paula Salinger issued by Judge Matthew J. Gary Sacramento Superior Court. Sanction issued against disabled, indigent pro per and domestic violence victim (see pages 11-12). Payable at $25 per month for more than 35 years. Judge Gary is caught on transcript admitting he did not follow the state law-mandated procedure for issuing the sanction. State law requires a judge to "consider all evidence concerning the parties' income, assets and liabilities," and "the judge may not impose an unreasonable financial burden on the sanctioned party. Family Code § 271(a)." See pages 4-10 for the applicable law.TRANSCRIPT
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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?
THE COURT: Go ahead and prepare the Statement of
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:
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)]
(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
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------~
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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
~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------3
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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?
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------4
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
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------5
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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
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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
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------6
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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
~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------7
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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?
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------8
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THE COURT: Okay.
THE RESPONDENT: It's my position that those orders
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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 COURT: Thank you.
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,
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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?
MS. SALINGER: Yes, Your Honor.
THE COURT: And how much is that a month she's
paying?
MS. SALINGER: It's approximately $100 a month for
~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------18
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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
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?
MS. SALINGER: Yes, Your Honor.
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
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------21
1 to pay for the insurance in two months anyway when you get to
2
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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
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------23
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.
~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------25
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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.
14
15
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
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------26
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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?
~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------27
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?
5
6
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?
11
12
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.
23
24
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
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------29
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.
8 BY THE RESPONDENT:
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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.
~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------33
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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
~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------34
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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.
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------36
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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.
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------37
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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.
15 BY THE RESPONDENT:
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.
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------38
1 THE RESPONDENT: Okay.
2 BY THE RESPONDENT:
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.
21 BY THE RESPONDENT:
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.
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------39
1 BY THE RESPONDENT:
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
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------40
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.
20 BY THE RESPONDENT:
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
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------41
1 BY THE RESPONDENT:
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
5
6 .
7 .
8 .
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?
~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------42
1 All right. If no other questions, no cross-exam?
2 MS. SALINGER: No, Your Honor.
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?
7 MS. SALINGER: No, Your Honor.
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
~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------43
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.
~-------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS-------45
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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.
THE COURT: Go ahead and prepare the Statement of
Decision for me, sir.
THE RESPONDENT: What's that?
THE COURT: Go ahead and prepare the Statement of
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.)
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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
~--------SACRAMENTO COUNTY OFFICIAL COURT REPORTERS--------~