Shenefield v. Shenefield ( 2022 )

Filed 2/25/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JENNIFER SHENEFIELD, D078643
Plaintiff and Respondent,
v. (Super. Ct. No. 18FL011393E)
MARK SHENEFIELD,
Defendant;
KAROLYN E. KOVTUN,
Objector and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Tilisha Martin and Laura Miller, Judges. Affirmed.
Karolyn E. Kovtun, in pro. per., for Objector and Appellant.
Higgs Fletcher & Mack, John Morris and Steven M. Brunolli, for
Plaintiff and Respondent.
INTRODUCTION
Mark Shenefield filed a request for order (RFO) with the court, seeking
joint legal and physical custody of the child he shares with Jennifer
Shenefield.1 In his declaration, Mark quoted from and referenced the
contents of a confidential, court-ordered psychological evaluation undertaken
during Jennifer’s previous marital dissolution. Mark’s attorney Karolyn
Kovtun filed the paperwork. Jennifer opposed Mark’s request and sought
sanctions for violations of Family Code2 sections 3111, subdivision (d)
and 3025.5, for unwarranted disclosure of the confidential custody
evaluation.
The court ordered the issue of sanctions to be heard at trial. Jennifer’s
trial brief detailed her arguments for why the court should impose sanctions
on both Mark and Kovtun. Mark did not file a trial brief.
Following trial, the court issued sanctions against Mark in the amount
of $10,000 and Kovtun in the amount of $15,000. Kovtun challenged the
sanctions, filing a motion under Code of Civil Procedure section 473,
subdivision (d). A different court heard Kovtun’s request to vacate the
sanctions imposed against her and denied the request.
On appeal, Kovtun argues the court improperly sanctioned her because
(1) attorneys cannot be sanctioned under section 3111; (2) the notice she
received did not comply with due process standards; (3) the court lacked
personal jurisdiction over her; (4) the court failed to enforce the safe harbor
provision of Code of Civil Procedure section 128.7; and (5) the court
improperly admitted and relied on a transcript of a meeting between Kovtun,
Mark, and Jennifer. We find Kovtun’s arguments meritless, and we will
affirm.
1 Because these parties share a surname, we refer to them by first name
for clarity.
2 Statutory references are to the Family Code unless otherwise specified.
2
I.
BACKGROUND AND PROCEDURAL FACTS
Jennifer and Mark were married on August 22, 2014. They share one
child, who was born in June 2016.
On May 25, 2017, Jennifer sought a temporary restraining order
against Mark. On June 13, 2017, the court issued a domestic violence
restraining order, which is set to expire June 12, 2022.
On September 13, 2017, Mark pled guilty to misdemeanor battery on a
spouse. The court issued a criminal protective order against Mark. Jennifer
was given sole physical custody of their child. Kovtun was Mark’s attorney of
record.
Jennifer filed for marital dissolution from Mark on September 26, 2018.
On August 21, 2018, Mark filed an RFO seeking joint legal and
physical custody of the couple’s child. In Mark’s attached declaration, after
detailing allegedly false allegations Jennifer made against her previous
husband, Mark wrote: “Jennifer was ordered to undergo a E[vidence] C[ode]
§730 evaluation by Dr. Stephen Sparta who suggested that she would do it
again if she felt the ends justified the means.” Then Mark explained the
court presiding over Jennifer’s previous marital dissolution matter ordered a
psychological evaluation, which was performed by Dr. Steven Sparta3 and
published December 11, 2012. Mark quoted directly from that report for
nearly a page of his declaration, single-spaced. Mark again discussed content
from Dr. Sparta’s evaluation in paragraph 10 of his declaration and
referenced some of the details again in paragraph 15. Kovtun was his
attorney of record.
3 Mark’s declaration spells Dr. Sparta’s first name Steven and Stephen.
3
On February 20, 2019, Jennifer filed her responsive declaration to
Mark’s RFO. Jennifer wrote that Mark’s RFO included “an illegal disclosure
of a confidential medical evaluation under [E]vidence [C]ode 730, Family
Code 3111 and Family Code 3025.5.” Her response also noted that Mark had
published the contents of the confidential evaluation on Facebook.
The parties appeared in court February 25, 2019. The court set the
matter for a bifurcated trial, and the court told the parties it would determine
custody, visitation, and sanctions at trial. The court set a trial readiness
conference for May 30, 2019.
At the trial readiness conference, the court identified issues for trial:
custody, visitation, child support, spousal support, and sanctions. No one
objected to the litigation of sanctions. The court directed the parties to
comply with the California Rules of Court and the local rules in filing trial
briefs and exhibits.
Jennifer filed her trial brief August 7, 2019. Section B argued that
sanctions were warranted against both Mark and Kovtun pursuant to
section 3111, subdivision (d). She maintained that Kovtun disclosed the
contents of the previous court-ordered custody evaluation maliciously,
recklessly, and without substantial justification. Jennifer attached to her
brief a transcript of a meeting that had occurred between her, Mark, and
Kovtun on September 28, 2017.
Mark did not file a trial brief.
The bifurcated trial occurred over three half-days, on August 14, 2019,
August 21, 2019, and January 15, 2020. Kovtun represented Mark.
The trial court rendered a final ruling February 28, 2020 and issued a
final ruling on bifurcated trial on child custody, visitation and sanctions
(Final Ruling).
4
In its Final Ruling, the court found that Mark provided excerpts of the
child custody evaluation from a previous dissolution matter. It noted that
Jennifer asked the court to impose sanctions in her February 20, 2019
response. It confirmed that at the May 30, 2019 trial readiness conference it
had identified the request for sanctions as an issue for trial. The court stated
that Kovtun was personally served Jennifer’s trial brief, which identified the
sanctions as an issue to litigate. The court wrote that “counsel was aware
Petitioner would be requesting sanctions related to the unwarranted
disclosure of the 730 Custody Evaluation in violation of Family Code
§3111(d), and this request was reiterated in Petitioner’s Trial Brief filed
August 7, 2019.” It found that Mark and Kovtun had actual notice of the
request for sanctions, as well as an opportunity to respond to and oppose the
request.
The court then found that Kovtun was a seasoned attorney, and as
such, she should have been aware of sections 3025.5 and 3111,
subdivision (d). It also found Kovtun was reckless in filing documentation
that disclosed a confidential custody evaluation. It concluded Kovtun
intended for the court to rely on the former custody evaluation from the
unrelated case. It also found Kovtun was not a party to the unrelated case
under section 3025.5, and thus sanctions were appropriate.
The court imposed $15,000 in sanctions against Kovtun, payable at
$300 per month, starting April 1, 2020, with interest accruing at an annual
rate of 10 percent.4
4 The court separately concluded Mark’s disclosure of the content from
the custody evaluation was unwarranted and without substantial
justification, and it imposed monetary sanctions against Mark in the amount
of $10,000.
5
On July 27, 2020, Kovtun filed a motion to vacate the portion of the
judgment imposing sanctions against her.
Jennifer opposed the request, and Kovtun filed a reply.
A court different from the one that issued sanctions heard Kovtun’s
motion. Following a hearing, the reviewing court denied Kovtun’s request
and affirmed the sanctioning court’s judgment, incorporating the sanctioning
court’s Final Ruling. The reviewing court concluded Kovtun was a party to
the proceedings, as defined in California Rules of Court, rule 1.6(15), found
Code of Civil Procedure section 128.7 inapplicable, concluded California
Rules of Court, rule 5.14 did not apply, and found that Kovtun had received
sufficient notice
Kovtun timely appealed.
II.
DISCUSSION
A. Section 3111 Applies to Attorneys
1. Section 3111
Section 3111, subdivision (a) allows a trial court to order a confidential
custody evaluation when the court determines that doing so is in the best
interest of the child. The corresponding report may not be disclosed to any
person outside of the parties to the action, law enforcement, counsel for the
child, or if a court orders the disclosure for good cause. (§§ 3111, subd. (b),
3025.5.) Section 3111, subdivision (d) states, “If the court determines that an
unwarranted disclosure of a written confidential report has been made, the
court may impose a monetary sanction against the disclosing party.” The
monetary sanction should be an amount that deters repetition of the conduct;
it may include reasonable attorney’s fees, costs incurred, or both, but the
6
sanction shall not impose “an unreasonable financial burden on the party
against whom the sanction is imposed.” (Ibid.)
This authority to impose sanctions was added to section 3111 as part of
Assembly Bill No. 1877, effective beginning January 1, 2009. (Leg. Counsel’s
Digest, on Assembly Bill No. 1877 (2007-2008 Reg. Sess.) Feb. 4, 2008.) Prior
to that revision, the law limited the availability and disclosure of the
confidential report, but it did not expressly provide for sanctions for
unwarranted disclosures. (Sen. Com. on Judiciary, Analysis of Assem. Bill
No. 1877 (2007-2008 Reg. Sess.) as amended April 3, 2008, pp. 2-3.) The
sanctions were added “to deter repetition of the conduct.” (§ 3111, subd. (d).)
2. Applicability of Section 3111 to Attorneys
Kovtun’s main argument is that the statute does not apply to her
because she is an attorney, not a party to the litigation, and the statute
authorizes sanctions only for parties. She argues the plain language excludes
attorneys, and the inclusion of attorneys in the statute is not supported by
the definitions applicable in family court, which she contends define “party”
to exclude an attorney of record.
The interpretation of a statute is a question of law, subject to de novo
review. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) Our primary
task is to “determine and effectuate legislative intent” by looking to the
statute’s language. (Woods v. Young (1991) 53 Cal.3d 315, 323.) We give
words their plain and commonsense meaning. (Murphy v. Kenneth Cole
Productions, Inc. (2007) 40 Cal.4th 1094, 1103.) “[W]hen the statute’s
language is ambiguous or susceptible of more than one reasonable
interpretation, [the court may] turn to extrinsic aids to assist in
interpretation.” (Ibid.) Moreover, “[w]here a statute is theoretically capable
7
of more than one construction we choose that which comports with the intent
of the Legislature.” (California Mfrs. Assn. v. Public Utilities Com. (1979) 24
Cal.3d 836, 844.)
a. Statutory Language and Legislative Intent
The statute states the party against whom the court may appropriately
impose sanction is the “disclosing party.” (§ 3111, subd. (d).) The modifying
word “disclosing” describes which parties are included in the statute: any
person who discloses the confidential information when doing so is
unwarranted.5 The plain language of the statute does not limit its
application to named litigants; attorneys can make unwarranted disclosures
of the confidential information.
The legislative history of section 3111 supports the conclusion that the
sanctions apply to attorneys of record. Before subdivision (d) was added,
courts could issue sanctions using section 271. (Assem. Com. on Judiciary,
Analysis of Assem. Bill No. 1877 (2007-1008 Reg. Sess.) as amended Mar. 13,
2008, p. 2). Under section 271, courts could “base an award of attorney’s fees
and costs on the extent to which the conduct of each party or their attorneys
further[ed] or frustrate[d] the promotion of settlement and reduce[d]
litigation costs.” (Concurrence in Sen. Amendments, Sen. Com. on Judiciary,
Bill Analysis of Assem. Bill No. 1877 (2007-2008 Reg. Sess.) as amended June
17, 2008, p. 2.)
The conduct described in section 271 is different from that prohibited
by section 3111, subdivision (d): Section 3111, subdivision (d) seeks to deter
the disclosure of confidential information, while section 271 seeks to
encourage cooperation toward settlement. (See Boblitt v. Boblitt (2010) 190
5 Later statutory language further explains the disclosure is
unwarranted if the disclosure is malicious or reckless. (§ 3111, subd. (f).)
8
Cal.App.4th 603, 612 [“The duty imposed by Family Code section 271
requires a party to a dissolution action to be cooperative and work toward
settlement of the litigation on pain of being required to share the party’s
adversary’s litigation costs”].) And the Legislature wanted to deter the
disclosure of information contained in child custody evaluations: “Because
parties are ordered to undergo an evaluation, it is imperative that the
confidential nature of a report be protected to [e]nsure [ ] the full cooperation
of those involved and to encourage full disclosure to the professionals.” (Sen.
Com. on Judiciary, Analysis of Assem. Bill No. 1877 (2007-2008 Reg. Sess.) as
amended April 3, 2008, p. 3.) The Legislature was concerned that it was not
clear how section 271 would benefit unrepresented parties, and that the
limitations to attorney fees and costs provided for in section 271 would not be
sufficient to deter repetition of the conduct prohibited by section 3111. (Sen.
Com. on Judiciary, Analysis of Assem. Bill No. 1877 (2007-2008 Reg. Sess.) as
amended April 3, 2008, pp. 3-4.) Thus, the intent of section 3111,
subdivision (d) was to “establish[ ] clear penalties for distributing the
information and ensuring that all interested parties are aware of the
penalties.” (Assem. Com. on Appropriations, Analysis of Assem. Bill No. 1877
(2007-2008 Reg. Sess.) as amended April 3, 2008, pp. 1-2.) The bill sought to
“ensure that sensitive information obtained for the court remains
confidential.” (Ibid.)
The legislative purpose of section 3111, subdivision (d) was discussed in
In re Marriage of Anka & Yeager (2019) 31 Cal.App.5th 1115 (Anka). There,
the appellate court affirmed the imposition of sanctions against an attorney
who violated section 3111 for asking questions in a deposition that elicited
information from a child custody evaluation report ordered during a previous
marriage dissolution. (Anka, at pp. 1118, 1123.) The attorney did not
9
challenge the court’s authority to impose sanctions for violating section 3111,
but the dicta is persuasive. The court explained that the attorney’s willful
disclosure of confidential information protected by statute harmed the
opposing litigant and also harmed “the entire process of child custody
evaluation,” implicitly recognizing the need for truthful communications in
evaluating a child’s best interests. (Anka, at p. 1122.)
If section 3111, like section 271, applied only to the parties to litigation,
a party to the dispute could simply share the information with counsel for the
purpose of disclosing it, and the attorney could then properly release
confidential information from the previous dissolution matter without
consequence. This outcome is inconsistent with the intended purpose of the
sanctions because it would discourage honesty during the custody evaluation,
making it more difficult for the court to determine the best interests of the
child. (See § 3111, subd. (a); Cal. Rules of Court, rule 5.220; Ailanto
Properties, Inc. v. City of Half Moon Bay (2006) 142 Cal.App.4th 572, 583
[courts consider consequences that flow from a particular statutory
interpretation].)
Finally, Kovtun argues that if section 271 does not authorize sanctions
to be paid by attorneys, neither does section 3111. Attorneys are subject to
sanctions for engaging in the behavior prohibited by Family Code section 271,
like failing to work toward settlement, via Code of Civil Procedure section
10
128.5.6 (See In re Marriage of Quinlan (1989) 209 Cal.App.3d 1417, 1422.)
Including attorneys again within Family Code section 271 would be
redundant because the conduct detailed in Code of Civil Procedure
section 128.5 and Family Code section 271 overlaps. The same is not true for
including attorneys in Family Code section 3111 because the conduct detailed
in section 3111 differs from what is detailed in other statutes.
b. California Rules of Court
Kovtun also argues the definitions applicable in family court preclude
attorneys from sanctions under section 3111 because, she contends, Rules of
Court, Title Five, the Family and Juvenile rules, define “party” to exclude
attorneys of record. (See Cal. Rules of Court, rule 5.1.)
California Rules of Court, rule 5.2(b)(6) defines “party” to include “a
person appearing in an action,” and it explains that “[a]ny designation of a
party encompasses the party’s attorney of record, including ‘party.’ ” Indeed,
the definition of “party” in Title Five is consistent with the definition
provided in Title One, which contains the rules applicable to all courts.
California Rules of Court, rule 1.6(15), defines a “[p]arty” as “a person
appearing in an action,” and it also notes that “party” “includes the party’s
6 Code of Civil Procedure section 128.5 authorizes courts to impose
sanctions against a party, the party’s attorney, or both for the use of bad faith
actions or tactics that are frivolous or intended to cause delay. (Code of Civ.
Proc., § 128.5, subd. (a).) The section applies to actions or tactics in civil
cases filed on or after January 1, 2015. (Id., subd. (i).) Code of Civil
Procedure section 128.7, which prohibits filings that are presented for an
improper purpose, requires a moving party to give the opposing party 21
days’ notice and an opportunity to correct any pleading errors. (Id.,
subds. (a), (b), (c)(1).) It applies to matters in which complaints or petitions
have been filed on or after January 1, 1995. (Id., subd. (i).)
11
attorney of record.” Thus, Kovtun’s position on this point is incorrect; the
Rules of Court define “party” to encompass a party’s attorney of record.7
B. Notice Complied with Due Process Standards
Kovtun contends she did not receive proper notice and therefore cannot
be subject to sanctions in this matter. She maintains that the only way for
Jennifer to meet the constitutional due process requirement was to file and
personally serve a form FL-300, an RFO, naming Kovtun as the person
against whom sanctions were sought, as required by California Rules of
Court, rule 5.14.
What constitutes proper notice under section 3111, subdivision (d) is a
question of law, which we review de novo. (In re Marriage of Feldman (2007)
153 Cal.App.4th 1470, 1479 (Feldman) [interpretation of statutes relied on to
issue sanctions reviewed de novo].)
1. California Rules of Court, Rule 5.14 is Inapplicable
California Rules of Court, rule 5.14 is a sanction rule that applies to
actions or proceedings brought under the Family Code for violating a rule of
court and is “in addition to any other sanctions permitted by law.” (Cal.
Rules of Court, rule 5.14(a), (c), (d)(1)(A).) Sanctions raised under this rule
must be based on the “failure without good cause to comply with the
applicable rules,” can be imposed only after the person seeking sanctions
makes a request for order or the court issues an order to show cause (OSC),
and must follow notice and an opportunity to be heard. (Id., rule 5.14(c), (d).)
“Sanctions awardable under this rule” are in addition to reasonable expenses,
including attorney fees and costs associated with the motion for sanctions.
(Id., rule 5.14(e).) In other words, rule 5.14 applies to violations of the
7 As we explain post, the authority to sanction an attorney in this
situation is statutory.
12
California Rules of Court, not statutes. (See, e.g., In re Marriage of Perow &
Uzelac (2019) 31 Cal.App.5th 984, 991 (Perow) [discussing why section 271
sanctions do not follow procedural requirements detailed in California Rules
of Court, rule 5.14].) Here, the court awarded statutorily-authorized
sanctions provided for in section 3111, which is one of the “other sanctions
permitted by law” referenced in California Rules of Court, rule 5.14(c). Thus,
the procedural requirements of rule 5.14, a rule which was not identified by
the trial court as a basis for sanctions “in addition to” the section 3111,
subdivision (d) sanctions, do not apply to this matter.
2. Procedural Requirements
Kovtun contends Jennifer was required to file an RFO because she
sought sanctions. However, when a party to a marital dissolution moves to
modify an existing court order, the responding party may file a responsive
declaration in which the party may request sanctions in addition to opposing
the requested order. (Perow, supra, 31 Cal.App.5th at pp. 989-991
[discussing procedural requirements for sanctions under section 271].)8
“[B]ecause [a] sanction is necessarily responsive to the moving party’s conduct
in litigating [a] motion, allowing a court to consider the moving party’s
conduct at the same time as his motion without the need for a separately
filed motion for fees also ‘avoid[s] possible duplicative, repetitious pleadings’
8 Although sections 271 and 3111 are distinguishable in scope and
purpose, the procedural requirements surrounding section 271 nonetheless
demonstrate that not all sanctions statutes provide mandatory procedural
prerequisites with which strict compliance is required. Neither section
requires use of a request for order or submission of the FL-300 to provide
notice to the persons against whom sanctions are sought. (§§ 3111, subd. (d);
271, subd. (b) [requiring notice and an opportunity to be heard without
reference to procedure].)
13
[Citation] . . . .” (Perow, at p. 991.) In other words, there is no requirement
that a party seeking a sanction does so in a separate RFO when the issue can
be efficiently and properly handled in conjunction with the original request
for order.9
Mark’s August 2018 RFO sought joint legal and physical custody of
their child. Along with the RFO, Mark filed a declaration in which he quoted
from a court-ordered psychological evaluation of Jennifer completed during a
previous dissolution proceeding to which Mark was not a party. In direct
response to this RFO, Jennifer sought sanctions against Mark and his
attorney, Kovtun, because the declaration disclosed the contents of the earlier
court-ordered custody evaluation. Thus, Jennifer’s request was responsive to
Mark’s and Kovtun’s conduct.
Kovtun focuses on notice requirements detailed in Code of Civil
Procedure section 128.5 and the Rules of Court. However, unlike those
provisions, the text of Family Code section 3111, subdivision (d) does not
9 Kovtun’s statement that sanctions imposed against a party in the
absence of a motion are not authorized under (any section of the) Family
Code is misleading. Mooney v. Superior Court (2016) 245 Cal.App.4th 523does not hold that sanctions can only be imposed following a motion. Instead,
the court had expressly disavowed any intent to impose sanctions and
explained that an order awarding attorney’s fees pursuant to section 2032
was not authorized because that section of the code requires a motion.
(Mooney, at pp. 535-536.)
14
require a separate RFO or otherwise mandate a noticed motion.10 Family
Code section 3111 does not detail any specific procedural requirements. And
Kovtun’s argument that the notice here did not strictly comply with the
notice requirements of the Rules of Court is not persuasive because, as we
have explained, the Rules of Court are not the basis for the sanctions. Thus,
we consider instead whether the notice Kovtun received complied with due
process.
3. Due Process Requirements Were Met
Due process requires “notice, an opportunity to respond, and a
hearing.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654.) The
purpose of due process is to provide affected persons with the right to be
heard “ ‘at a meaningful time and in a meaningful manner.’ ” (Rodriguez v.
Department of Real Estate (1996) 51 Cal.App.4th 1289, 1296.) When
sanctions are at issue, due process can be satisfied if the court gives a clear
warning identifying the anticipated grounds for the sanctions or if those
grounds are identified by the opposing party, and the court provides counsel
with an opportunity to respond at least orally. (In re Marriage of Quinlan,
supra, 209 Cal.App.3d at p. 1423.)
Jennifer first requested sanctions February 20, 2019, in her response to
Mark’s request for joint legal and physical custody of their child. Five days
later, the parties appeared in court to address Mark’s RFO. At that hearing,
the court set the matter for a bifurcated trial to address custody, visitation,
10 Kovtun argues that because the FL-300 directs parties to file
information regarding their requests for sanctions against each other, and
does not provide an option for requesting sanctions from an attorney,
attorneys cannot be ordered to pay sanctions. However, section 3111 does not
specify that parties must file a form FL-300 at all. Thus, the omission of
attorneys from the form holds no significance.
15
and sanctions, thereby notifying Kovtun that sanctions were at issue. Then,
on May 30, 2019, the parties appeared for a trial readiness conference at
which the court confirmed the issues for the trial were custody, visitation,
child support, spousal support, and sanctions, again informing Kovtun of the
possibility of sanctions and identifying when she would have an opportunity
to be heard.
Section B of Jennifer’s trial brief sought sanctions for the improper
disclosure of a confidential report and detailed why sanctions against Kovtun
would be appropriate in the circumstances, again highlighting the grounds
for sanctions and identifying the time when Kovtun could be heard. Kovtun
did not file a trial brief on Mark’s behalf, though that would have been one
way for Kovtun to respond to the request for sanctions. Each of these
instances—Jennifer’s response to Mark’s RFO, the court’s statements about
the scope of issues, information at the trial readiness conference, and
Jennifer’s trial brief—provided Kovtun actual notice that she could be subject
to sanctions. Taken collectively, these events persuade us the notice
requirements of due process were met.
Kovtun does not claim the documents seeking sanctions were not
served on her.11 Nor does she claim that the court did not address the issue
of sanctions in the hearing or at the trial readiness conference. But she
nonetheless claims in her declaration to her motion to set aside her sanctions
that she “was not given notice.” The procedural facts outlined in the court’s
order refute Kovtun’s claim.
11 Kovtun’s declaration in support of her motion to set aside the sanctions
portion of the judgment states that she was not served personally with an
RFO or noticed motion seeking monetary sanctions.
16
Further, although Kovtun stated in her declaration that the court did
not provide her an opportunity to be heard on the issue of sanctions before it
issued its ruling, she points to no evidence to support this allegation beyond
the bald statement in her declaration. Certainly, Kovtun could have been
heard in the trial brief she failed to file.
Moreover, the information before us indicates the issue of sanctions
was one to be addressed at trial. Kovtun fails to respond to the reviewing
court’s comment that evidence was “entirely within [Kovtun’s] control, but
she made no effort to introduce such evidence [regarding sanctions].” Kovtun
does not direct us to evidence in the record which demonstrates the issue of
sanctions was handled at trial in a way that precluded Kovtun from an
opportunity to be heard.12 To the extent that Kovtun’s argument rests on
the events of trial, it is her burden to present a record from which we can
evaluate whether there has been error. (Niederer v. Ferreira (1987) 189
Cal.App.3d 1485, 1509.) The “failure to do so results in affirmance.” (Ibid.)
12 In Kovtun’s motion to vacate the sanctions portion of the judgment, she
argues that she made objections “as to herself” to the admission of a
transcript of a meeting that occurred on September 28, 2017, and states that
the court overruled those objections. This information suggests Kovtun had
an opportunity to be heard regarding her own interests. It also appears to
contradict her statement in her related declaration that “the issue of . . . the
alleged unauthorized disclosure was never raised in trial, nor was it ever
discussed.” It is unclear if a Reporter’s Transcript from the trial exists. No
such transcript was requested by Kovtun’s designation of record on appeal.
Nor did Kovtun request the minutes from the trial, which may have shed
light more specifically on what occurred. When there is no reporter’s
transcript and no error is evident from the face of the appellate record, we
presume that the unreported trial testimony would demonstrate absence of
error. (In re Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
17
C. The Court Exercised Proper Jurisdiction to Impose Sanctions
Next, Kovtun contends sanctions were improper because the court did
not have personal jurisdiction over her. She argues that personal jurisdiction
only attaches when a person is personally served with notice of possible
sanctions. We review the denial of request to vacate a judgment for lack of
jurisdiction de novo. (People v. North River Ins. Co. (2020) 48 Cal.App.5th
226, 232 [voidness is a legal question reviewed de novo].)
Kovtun misunderstands the source of the court’s authority here. An
attorney is an officer of the court, “generally subject to the court’s control as a
‘person . . . connected with a judicial proceeding before [the court].’ ”
(Durdines v. Superior Court (1999) 76 Cal.App.4th 247, 256, citing Code of
Civ. Proc., § 128, subd. (a)(5) [explaining court’s power includes controlling
conduct of ministerial officers in furtherance of justice].) As the Supreme
Court explained in Bauguess v. Paine (1978) 22 Cal.3d 626 (Bauguess),
“under certain circumstances both trial and appellate courts are authorized
to order counsel to pay the opposing party’s attorney’s fees as a sanction for
counsel’s improper conduct.” (Id. at p. 635, fn. omitted.) In doing so, courts
draw on “equitable power derived from the historic power of equity courts
[citations], and supervisory or administrative powers which all courts possess
to enable them to carry out their duties [citations].” (Ibid.)
The controversy in Bauguess asked the Supreme Court to evaluate
whether a court could award attorney fee sanctions under its supervisory
power absent statutory authority, and it concluded courts could not.
(Bauguess, supra, 22 Cal.3d at pp. 636-637.) But clear from the court’s
discussion was that courts have inherent power to punish via the contempt
process, which incorporates procedural safeguards, and that the Legislature
18
can provide by statute the authority to impose sanctions.13 (Id. at pp. 638-
639.) Such is the case here. Section 3111 grants the court the authority to
impose sanctions on counsel.
Finally, despite arguing that the court lacked personal jurisdiction over
her for lack of personal service, Kovtun does not direct us to information in
the record that demonstrates she was not personally served with the notice of
the sanctions via Jennifer’s trial brief; nor does she otherwise explain why
personal service of that document did not comply with her due process rights
of notice and an opportunity to be heard.14
D. Code of Civil Procedure Section 128.7 Does Not Apply
Kovtun contends the court and Jennifer were required to comply with
Code of Civil Procedure section 128.7 and its safe harbor provisions before
sanctions against her could issue. She further contends that substantial
compliance with the notice requirements of Code of Civil Procedure
section 128.7 is insufficient.
1. Code of Civil Procedure Section 128.7
Code of Civil Procedure section 128.7 requires attorneys to certify that
a motion or similar document filed with the court is not being used for an
13 The Legislature subsequently enacted Code of Civil Procedure section
128.5 in response to Bauguess, broadening the power of trial courts by
authorizing additional monetary sanctions. (Olmstead v. Arthur J.
Gallagher & Co. (2004) 32 Cal.4th 804, 809.)
14 Kovtun seems to suggest the court should have applied Code of Civil
Procedure section 128.7 instead of Family Code section 3111. However, it is
unclear why the court’s use of Code of Civil Procedure section 128.7 addresses
her argument regarding personal jurisdiction. Although Code of Civil
Procedure section 128.7 requires a noticed motion, it does not mandate
personal service, which is what Kovtun contends must occur for personal
jurisdiction to attach. (See id., subd. (c)(1).)
19
improper purpose, is not frivolous, and includes evidentiary support or likely
will upon further investigation or discovery. (Code of Civ. Proc., § 128.7,
subds. (a)-(b)(3).) It also offers a safe harbor provision so that an attorney
has an opportunity to “avoid sanctions by withdrawing or otherwise
appropriately correcting the offending paper, claim, defense, contention,
allegation, or denial.” (Barnes v. Department of Corrections (1999) 74
Cal.App.4th 126, 132 (Barnes).) The party seeking sanctions must serve a
noticed motion on the offending attorney, or the court must enter an order
describing the offending conduct and stating it will issue an OSC for why the
challenged conduct has not violated the law. (Code of Civ. Proc., § 128.7,
subds. (c)(1)-(2).) “By withdrawing specious or meritless legal contentions,
pointless and time-consuming litigation is avoided. Failing to comply with
procedures designed to minimize or reduce meritless litigation, in effect
promotes it.” (Barnes, at p. 132.)
Additionally, “ ‘the “safe harbor” provision works in conjunction with
the duty of candor, giving the proponent of a questionable claim an
opportunity to assess the claim’s validity without immediate repercussion.”
[Citation.]’ ” (Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 14.)
The safe harbor provision helps prevent the identified harm of pursuing
meritless legal contentions. Accordingly, notice requirements are strictly
construed. (Barnes, supra, 74 Cal.App.4th at p. 136.)
2. Inapplicability of Code of Civil Procedure Section 128.7
The premise of Kovtun’s argument is that because section 3111,
subdivision (d) does not apply to attorneys, the only way the court could
properly sanction her would be via Code of Civil Procedure section 128.7,
which applies to attorneys and unrepresented parties.
20
Kovtun cites no authority for this conclusion, and she offers no
explanation for why a safe harbor would be appropriate in the present
circumstances.15 Further, as we previously concluded, Family Code
section 3111, subdivision (d) applies to attorneys; thus, Code of Civil
Procedure section 128.7 is not the only procedural mechanism available to
courts to impose sanctions on attorneys, as Kovtun contends.
We note, too, that a safe harbor provision would not be appropriate
here because the harm Family Code section 3111 seeks to prevent is not the
reduction of meritless litigation, which Code of Civil Procedure section 128.7
seeks to avoid. (Barnes, supra, 74 Cal.App.4th at p. 132.) Instead it is the
disclosure itself that negatively impacts the process of determining custody in
the best interests of the child. (See Sen. Com. on Judiciary, Analysis of
Assem. Bill No. 1877 (2007-2008 Reg. Sess.) as amended April 3, 2008, p. 3;
Anka, supra, 31 Cal.App.5th at p. 1122.) Providing an attorney with the
opportunity to retract a statement within a predetermined time does not
avoid the harm of disclosure identified by Family Code sections 3111 or
3025.5.
Here, the filing revealed confidential information contained in a court-
ordered psychological evaluation to help it determine the custody
15 Kovtun’s reliance on Burkle v. Burkle (2006) 144 Cal.App.4th 387(Burkle) is misplaced. There the court did not hold that “any sanctions
sought against the attorney” must be pursued via Code of Civil Procedure
section 128.7, as Kovtun alleges in her opening brief. In Burkle, the court
considered whether the filing of a civil action could warrant sanctions in a
dissolution proceeding under Code of Civil Procedure section 128.7 and
concluded it could. (Burkle, at pp. 393, 399-401.) Although the court
separately noted in a footnote that attorneys cannot be sanctioned under
Family Code section 271, the court there did not draw any comparison
between Family Code sections 271 and 3111. (Burkle, at p. 403, fn.7.)
21
arrangements that were in the best interest of children in a prior marriage
and custody dispute. Once that material had been revealed, the information
became public—the very result the Legislature was concerned about when it
adopted section 3111, subdivision (d). (Assem. Com. on Appropriations,
Analysis of Assem. Bill No. 1877 (2007-2008 Reg. Sess.) as amended April 3,
2008, p. 1 [commenting that “confidentiality laws surrounding court ordered
child custody evaluations are not strong enough to stop parents from widely
and inappropriately disseminating the information contained in the
reports”].)
E. Admissibility of Recording
1. Additional Facts
Jennifer filed for a restraining order against Mark on May 25, 2017.
Her request alleged she experienced “physical abuse with injuries from
strangulation and hitting by [Mark],” and she provided photographs of her
injuries. Mark did not respond to Jennifer’s request for a temporary
restraining order and instead requested to go forward with the hearing. On
June 13, 2017, the court issued a five-year restraining order. It prohibited
Mark from contacting Jennifer or their child other than for court-ordered
visitation, and it authorized Jennifer to record any violations of the
restraining order.
On September 13, 2017, Mark pled guilty to violating Penal Code
section 243, subdivision (e)(1), misdemeanor battery on a spouse. The court
issued a criminal protective order against Mark. The order contained the
same terms as the restraining order, prohibiting Mark from contacting
Jennifer or their child other than peacefully for visitation, and it authorized
Jennifer to record any violations. Kovtun was Mark’s attorney of record in
the criminal case.
22
On September 28, 2017, Jennifer attended a meeting at Kovtun’s office,
with Mark and Kovtun. Jennifer recorded the meeting. During the course of
the meeting, Kovtun told Jennifer she was a liar and a bad and unfit mother
who was harmful to their child. When Jennifer said if Kovtun were not
there, Mark would probably be beating her, Kovtun responded, “You know
what? I would be.” Kovtun called Jennifer “nuts,” said Jennifer was “out of
[her] mind,” commented that living with Jennifer was like dealing with a
lunatic, and called Jennifer crazy.
Mark berated Jennifer, telling her that he was going to take their child
away and get full custody, directing Jennifer to stop crying, and admonishing
her that if she loved him, Jennifer would sign a custody agreement that
would give Mark 50 percent custody. Kovtun repeatedly supported Mark’s
statements, commenting, “Yeah.”
As a consequence of the September 28, 2017 meeting, Mark pled guilty
to violating a court order (Pen. Code, § 166, subd. (c)(1)) in October 2018.
Also in October 2018, Jennifer filed a lawsuit in civil court against
Kovtun alleging causes of action arising out of the conduct that occurred at
the September 28, 2017 meeting. In connection with that lawsuit, Kovtun
filed an anti-SLAPP motion, which the trial court denied.16 That trial court
concluded the transcript and recording of the conversation were admissible
under the facts of that case.
Separately, on August 21, 2018, Mark filed the RFO for joint legal and
physical custody of their child. Jennifer opposed the request and sought
sanctions for violations of sections 3111 and 3025.5 in the RFO filing.
16 Kovtun appealed the court’s denial of a second anti-SLAPP motion in
that matter, Shenefield v. Kovtun, case No. D078616.
23
The court that imposed sanctions on Kovtun as part of the Final Ruling
discussed the contents of the transcript of the September 28, 2017
conversation. The trial court found that Kovtun is a seasoned attorney. The
court stated that Kovtun acknowledged that she is a seasoned attorney to
Jennifer during the September 28, 2017 conversation. It concluded that as a
seasoned attorney, Kovtun should have been aware of sections 3111,
subdivision (d) and 3025.5, subdivision (a)(1). The trial court also found
Kovtun was reckless in filing the documentation, then stated it was “hard
pressed to find that such disclosure was not intentional based on the
statements made by [Mark]’s counsel to [Jennifer] at the meeting in her office
on September 28, 2017.” The court noted that Kovtun’s statements were
made after a restraining order was issued against Mark.
The court found that Kovtun intended for the court to rely on the
confidential Evidence Code section 730 custody evaluation from an unrelated
case. It ultimately determined that “by disclosing in court pleadings portions
of a confidential report with [Jennifer’s] private information,” Kovtun
“cause[d] harm . . . not only to [Jennifer] and her children, including the child
she shares with Respondent, and her former husband,” “but also to the entire
process of litigation . . . .”
In her motion to vacate the sanctions portion of the judgment against
her, Kovtun argued the court improperly considered the contents of the
September 28, 2017 meeting because the recording was inadmissible.
In her opposition, Jennifer requested judicial notice of the civil court’s
conclusion that the recording was admissible. The court that denied Kovtun’s
motion to vacate the sanctions portion of the judgment did not expressly rule
on the request for judicial notice. Nor did it reference the transcript in its
denial.
24
2. Admissibility of the Transcript
Kovtun argues that the sanctioning court improperly admitted and
considered the transcript of the recording of the September 28, 2017 meeting
at Kovtun’s office. She maintains that Jennifer violated Penal Code
section 632 by recording the conversation because the communication was
confidential, and such a recording is not admissible in a judicial proceeding.
She further contends that her statements during the meeting are protected
by the litigation privilege.
We review the admissibility of evidence for an abuse of discretion (Evid.
Code, § 310; People v. Waidla (2000) 22 Cal. 4th 690, 717 [“Broadly speaking,
an appellate court applies the abuse of discretion standard of review to any
ruling by a trial court on the admissibility of evidence”]; People v. Hall (2010)
187 Cal.App.4th 282, 294.) “A ruling that constitutes an abuse of discretion
has been described as one that is ‘so irrational or arbitrary that no reasonable
person could agree with it.’ ” (Sargon Enterprises, Inc. v. University of
Southern California (2012) 55 Cal.4th 747, 773 (Sargon Enterprises), quoting
People v. Carmony (2004) 33 Cal.4th 367, 377.) Additionally, an “ ‘[a]ction
that transgresses the confines of the applicable principles of law is outside
the scope of discretion and we call such action an “abuse” of discretion.’
[Citation.]” (Horsford v. Board of Trustees of California State University
(2005) 132 Cal.App.4th 359, 393 (Horsford).)
Penal Code section 632 establishes a cause of action for invasion of
privacy when a person records a confidential communication without the
consent of all parties. (Pen. Code, § 632, subd. (a).) It prohibits evidence
obtained through the recording of a confidential communication in violation
of Penal Code section 632 from use in any judicial proceeding, except as proof
25
for violating Penal Code section 632.17 (Id., subd. (d).) Its definition of
“confidential communication” excludes “a communication made . . . in
any . . . circumstance in which the parties to the communication may
reasonably expect that the communication may be overheard or recorded.”
(Id., subd. (c).) The standard for confidentiality is whether there is “an
objectively reasonable expectation that the conversation is not being
overheard or recorded.” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 777
(Flanagan).)
Kovtun was Mark’s criminal defense attorney and represented him
when he pled guilty to misdemeanor battery on a spouse on September 13,
2017. And she was his attorney when the court issued the corresponding
protective order. Thus, she was aware of the protective order when she
participated in the September 28, 2017 meeting, and she was aware that
Jennifer had the right to record communications with Mark under the terms
17 Other sections of the Penal Code specifically permit victims of domestic
violence to record confidential communications, and they provide that
evidence from the recordings are admissible in actions seeking restraining
orders or prosecuting domestic violence. (Pen. Code, §§ 632.01,
subd. (d)(1)(F), 633.5.) Penal Code section 632.01, subdivision (d)(1)(F)
permits the disclosure or distribution of a confidential communication by “[a]
victim of domestic violence recording a prohibited communication
made . . . by the perpetrator pursuant to [Penal Code] Section 633.6,” a
section which separately allows a victim seeking a domestic violence
restraining order who reasonably believes a confidential communication
contains evidence germane to the restraining order to record the
communication for the purpose of providing the evidence to the court. (Pen.
Code, § 632.01, subds. (d)(1)(A), (F); 633.6.) And Penal Code section 633.5
separately permits a party to a confidential recording to record the
communication for the purpose of obtaining evidence reasonably believed to
relate to the commission of another party to the communication of the crime
of domestic violence. It also permits the admission of evidence from the
recording to be used in a prosecution of such a crime.
26
of the restraining and protective orders. The court’s February 27, 2020 Final
Ruling noted that the September 28, 2017 meeting occurred after the
restraining and protective orders were issued against Mark, recognizing that
Kovtun knew Jennifer was authorized to record communications with Mark
when Kovtun hosted the meeting at her office.
Kovtun’s knowledge about Jennifer’s right to record communications
with Mark casts doubt on her claim that the communication was confidential.
Because Kovtun knew Jennifer had a right to record communications that
could evidence Mark violating the protective orders, it was not objectively
reasonable for Kovtun to believe the conversation she participated in could
not be recorded.18 Absent such an expectation, the communication could not
be characterized as confidential, and it therefore does not fall within the
restrictions detailed in Penal Code section 632.
Kovtun emphasizes the language in Penal Code section 632 that
prohibits the use of evidence obtained through the recording of a confidential
communication in violation of Penal Code section 632 in any judicial
proceeding. However, Kovtun’s emphasis is misplaced. The statute only
prohibits the admission of confidential communications in judicial
proceedings, and Kovtun fails to explain why the communication was
confidential, i.e., why there was an objectively reasonable expectation that
the conversation was not being recorded. (See Flanagan, supra, 27 Cal.4th at
pp. 777.) Thus, the court’s admission of the transcript did not abuse its
discretion because it did not “ ‘transgress the confines of the applicable
principles of law’ ” (Horsford, supra, 132 Cal.App.4th at p. 393) and was not
18 In Kovtun’s declaration to support her motion to set aside the sanctions
portion of the judgment, she states that she suspected Jennifer was “playing
to a recording device” during the September 28, 2017 meeting.
27
otherwise irrational or arbitrary such that “ ‘no reasonable person could
agree with it.’ ” (Sargon Enterprises, supra, 55 Cal.4th at p. 773.)
Even had the court abused its discretion by admitting the transcript of
the meeting, Kovtun does not identify any resulting prejudice. From the
transcript, the court confirmed that Kovtun is a seasoned family law
attorney, a finding Kovtun does not dispute.19 On that basis, the court
concluded that Kovtun should have been aware of the Family Code
prohibition on disclosing the confidential custody communication and
determined that Kovtun acted at least recklessly. The sanctioning court next
provided additional details from the transcript of the September 28, 2017
meeting to explain why it concluded Kovtun’s actions were likely intentional.
But those conclusions were not necessary to determine Kovtun violated
section 3111. (See § 3111, subd. (f) [explaining a disclosure is unwarranted if
either reckless or malicious and not in the best interests of the child].)
Further, the record supports the sanctioning court’s conclusion that
Kovtun acted at least recklessly. Mark’s declaration states that it is quoting
from a court-ordered evaluation from a prior marital dissolution, published
December 11, 2012. And in her motion to vacate the sanctions, Kovtun as
much as concedes she was aware that the filing included quotations taken
from Jennifer’s previous court-ordered evaluation when she offers
19 Kovtun’s declaration in support of her motion to vacate the sanctions
portion of the judgment indicates she has been practicing law since 1995.
28
justification for why doing so was appropriate (and presumably therefore
warranted).20
Finally, although Kovtun claims the substance of the communication is
inadmissible because it is protected by the litigation privilege detailed in
Civil Code section 47, subdivision (b), the incomplete nature of this argument
waives it. She does not explain in her opening brief why the contents of the
communication in this context are privileged or how the privilege impacts the
court’s use of the information to help assess her potential motives in filing
documents that expressly disclosed the contents of the court-ordered
evaluation. “Appellate briefs must provide argument and legal authority for
the positions taken. ‘When an appellant fails to raise a point, or asserts it
but fails to support it with reasoned argument and citations to authority, we
treat the point as waived. [Citations.]’ ” (Nelson v. Avondale Homeowners
Assn. (2009) 172 Cal.App.4th 857, 862.) It is insufficient to simply state
general legal principles or legal authority; rather, an appellant must offer
argument as to how the court erred and apply the law to the circumstances
before the court. (Landry v. Berryessa Union School Dist. (1995) 39
20 Kovtun argues the information contained in that report was
exculpatory to the criminal charges against Mark and therefore she could
have subpoenaed the court-appointed evaluator to testify in the criminal
case. The implication is that the same information could be quoted in the
custody action. However, this disregards the different contexts of a criminal
case, where there would have been at least an opportunity for cross-
examination, and a dissolution matter, in which the information was publicly
revealed without warning or opportunity to question the evaluator and
without placement in the confidential portion of the court file of the
proceeding (see § 3025.5). Kovtun’s argument also does nothing to disprove
the court’s conclusion here that she knew the information was confidential
when she filed the declaration disclosing its contents and serves to support
the sanctioning court’s conclusion that she intended for the court to rely on
that information in reaching its decision.
29
Cal.App.4th 691, 699.) Moreover, although she develops her position in her
reply brief, when she argues the litigation privilege is absolute and protects
her from sanctions in connection with that communication,21 we deem the
argument forfeited for failure to raise it in the opening brief. (Newton, at
p. 1005.)
Even were we to conclude the litigation privilege made the court’s use
of the transcript improper, it would not persuade us that the order denying
the motion to vacate the sanctions portion of the judgment was erroneous.
The sanctions did not arise out of Kovtun’s conduct during the recorded
meeting. The court sanctioned Kovtun because of her participation in the
disclosure of confidential information in violation of sections 3111,
subdivision (d) and 3025.5. The court considered the contents of the
communication to support its conclusion that Kovtun acted intentionally and
recklessly, but the court primarily based its conclusion that Kovtun acted
recklessly on its evaluation that Kovtun is an experienced family law
attorney. As we explained ante, even without that transcript, the court’s
conclusion is supported by substantial evidence. (See Feldman, supra, 153
Cal.App.4th at p. 1479 [findings of fact forming basis for sanctions award
reviewed for substantial evidence].)
21 Kovtun raises the litigation privilege as a defense to sanctions for
disclosing the confidential contents of the Evidence Code section 730 custody
evaluation for the first time on appeal in her reply brief. Accordingly, we
deem the argument forfeited. (People v. Newton (2007) 155 Cal.App.4th 1000,
1005 (Newton).)
30
DISPOSITION
The order is affirmed. Parties to bear their own costs on appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
GUERRERO, J.
31