Marriage of Stupp and Schilders CA1/2

Filed 1/25/22 Marriage of Stupp and Schilders CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of STEVEN
STUPP and ANNEMARIE
SCHILDERS.
STEVEN STUPP,
Respondent,
A161177, A161576, A162373
v.
ANNEMARIE SCHILDERS, (San Mateo County
Super. Ct. No. FAM 0110799)
Appellant;
ESTER ADUT,
Appellant.
Ester Adut is the attorney for Annemarie Schilders, who is a party to a
long-running marital dissolution. In these consolidated appeals, Adut
challenges the family court’s order that she pay $1,050 in sanctions under
section 177.5 of the Code of Civil Procedure for violating a lawful court order.
The sanctions were imposed after Adut sought a writ of execution for the
payment of a discovery sanction against Steven Stupp, the petitioner below,
knowing full well that the discovery sanction, which was still being
adjudicated, was subject to a stay, and representing under penalty of perjury
in the application for writ that no stay of execution of the discovery sanction
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had been granted. The trial court did not err in ordering the sanctions
against Adut, and we shall affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2010, Steven Stupp filed a petition to dissolve his marriage to
Schilders. A stipulated judgment of dissolution was entered in March 2014,
and since then the case has been intensively litigated in the trial court, where
several different trial court judges have presided over the matter. The
history of the litigation is confusing and chaotic, as reflected in the register of
actions, which is over 180 pages long; the hearing transcripts included in the
record on appeal; and the description in appellant’s brief of the procedural
history of the issue before us.1
The three appeals before us arise from the imposition of sanctions
against Adut under Code of Civil Procedure section 177.5 for violating an
order made at a hearing on December 19, 2019 (December 2019 hearing).2
Adut was present at that hearing, during which the trial court (Judge Sean
P. Dabel) addressed a number of issues. As relevant here, the court stayed
an April 23, 2019 discovery sanction in Schilders’s favor (April 2019 order)
pending the adjudication of Stupp’s challenges to that sanction. There was
no ambiguity about the stay: after hearing extensive argument, Judge Dabel
stated that, based on the contents of Stupp’s challenges and the history of the
September 2015 motion that led to the April 2019 order, he was “going to stay
1The underlying case has also been intensively litigated in this court,
where 24 appeals have been initiated and 7 writ petitions filed by Schilders
or Adut.
2All further statutory references are to the Code of Civil Procedure
unless otherwise stated.
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now any prior discovery sanction pending further adjudication.” 3 (Italics
added.) Adut does not suggest or argue that she failed to hear or understand
the trial court’s statement. The court instructed Stupp’s attorney to prepare
an order after hearing. All of this is reflected in the court’s December 19,
2019 minute order, which states, “The court will stay prior discovery
sanctions pending adjudication. [¶] Petitioner’s counsel to prepare order.”
On January 21, 2020, Stupp’s counsel served Adut with a letter “re
[Proposed] Findings and Order After Hearing for Proceeding Heard on
12/19/2019.”4 We do not know the contents of that letter; Adut later told the
court that she “did not attend to” it.
On January 27, before the adjudication of Stupp’s challenges and before
the entry of any further written order regarding the stay, Adut applied for
3 This is an abbreviated history of the April 2019 order, as best we can
tell from the record. It had been issued by Judge Elizabeth Hill, who later
recused herself. The order required Stupp to pay $27,433 in discovery
sanctions for failing to provide code-compliant responses to discovery, and
offset from the sanction amount any unpaid amount due from a $6,316
sanction that the court had previously ordered Schilders to pay to Stupp. In
an order signed in March 2020, Judge Dabel found that the April 2019 order
was not just or equitable under the circumstances and granted Stupp’s
motion to set it aside. Judge Dabel found that in making the April 2019
order, Judge Hill had not considered a July 27, 2015 order staying discovery
that had been made by Judge Susan Greenberg, who was then presiding over
the case, and who had recused herself by the time Judge Hill took over the
case. One reason Judge Hill did not consider the earlier order is that Adut
and a former attorney for Schilders failed to prepare a written order after the
July 27, 2015 hearing, despite being instructed by Judge Greenberg to do so.
Then, even though discovery had been stayed by the July 2015 order,
Schilders filed a motion to compel, which led to the imposition of sanctions
against Stupp for responses that had been served on July 30, 2015, while
discovery had been stayed.
4 Subsequent dates are in 2020 unless otherwise stated.
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issuance of a writ of execution for the April 2019 order, and stated under
penalty of perjury that the sanctions order was not subject to a stay of
execution.
On February 3, the court denied the application for issuance of writ of
execution. Ten days later the court issued an order to show cause why Adut
should not be sanctioned under section 177.5 for applying for a writ of
execution of the April 2019 order in the face of the court’s December 19, 2019
order. The order to show cause was scheduled to be heard in April, but the
hearing was delayed until July as a result of the court’s emergency pandemic
orders. The hearing was further continued at Adut’s request, and the issue
was eventually heard on September 3, along with other issues in the
underlying case.
On September 23, the court signed written findings and orders after
the September 3 hearing. As to the sanctions issue, the court stated that
after notice and an opportunity to be heard, Adut was sanctioned $1,050
pursuant to section 177.5; that a separate written order concerning the
sanctions would be prepared by the court; and that the court would notify the
California State Bar of the sanctions.
As it happens, the separate order concerning the sanctions was not
entered until February 2021. The trial court explained the delay: shortly
after the September 3 hearing, Adut filed three statements of disqualification
against Judge Dabel under section 170.3, and “[i]n the interest of justice and
fairness to Ms. Adut,” the court had not published the order or reported the
imposition of sanctions to the California State Bar while the issue of his
disqualification was pending.
The February 2021 order described the sanctionable conduct in detail,
explaining that the stay of enforcement announced at the December 2019
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hearing was memorialized in a minute order; that “the attorneys retrieved a
transcript [of the hearing] in the process of meeting and conferring about the
preparation of the Finding and Order After Hearing”; and that upon receiving
Adut’s application for writ of execution with its representation that no stay
had been issued, the court “had to spend significant time retrieving a
transcript to ensure its orders were clear, and sifting through the lengthy
trial and appellate case history to confirm its impression that this particular
discovery sanction had been stayed—despite the attorney’s representation.”
Adut appealed.5 Stupp did not file a respondent’s brief, and oral
argument was waived, so we decide the appeal on the record and appellant’s
opening brief. (Cal. Rules of Court, rule 8.220(a)(2).)
DISCUSSION
A. Applicable Law and Standard of Review
Section 177.5 authorizes a judicial officer to impose monetary sanctions
“for any violation of a lawful court order by a person, done without good cause
or substantial justification.” The statute defines “person” to include a party’s
attorney, but sanctions may not be imposed for “advocacy of counsel before
the court.” (§ 177.5.) Sanctions under section 177.5 are payable to the court,
may not exceed $1,500, and may be imposed only after notice and an
opportunity to be heard. (Ibid.) The sanctions order must be in writing, and
must “recite in detail the conduct or circumstances justifying the order.”
(Ibid.) The purpose of section 177.5 “is to punish and deter violations of
lawful court orders [citation], and to compensate the judicial system for the
5Appeal A161177 challenges the minute order from the September 3,
2020 hearing; appeal A161576 challenges the written order signed later that
month, and appeal A162373 challenges the detailed written order entered in
February 2021. We granted Adut’s unopposed motions to consolidate the
appeals.
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cost of unnecessary hearings [citation].” (People v. Landers (2019) 31
Cal.App.5th 288, 303 (Landers).)
We review an order imposing sanctions under section 177.5 for abuse of
discretion. (People v. Hooper (2019) 40 Cal.App.5th 685, 691 (Hooper).) “The
trial court must exercise its discretion in a ‘reasonable manner with one of
the statutorily authorized purposes in mind and must be guided by existing
legal standards.’ ” (Ibid.) We will not disturb the trial court’s exercise of
discretion unless the record shows that the court exceeded the bounds of
reason, contravened uncontradicted evidence, failed to follow the proper
procedure, or applied the wrong legal standard. (Landers, supra, 31
Cal.App.5th at pp. 303-304.) We review questions of law de novo. (Hooper,
supra, at p. 692.)
B. Analysis
Adut offers three arguments for reversing the trial court’s order. We
find none of them persuasive.
1. First Argument
Adut argues that it was error for the court to sanction her for violating
an order because there was no order for her to violate. She contends that the
court’s oral pronouncement at the December 2019 hearing is not an order for
purposes of section 177.5; the minute order from that hearing is not an order
for purposes of section 177.5 because it requires Stupp’s attorney to prepare a
written order; and in any case the minute order may not be enforced against
her because she did not receive or know of it when she filed the application
for a writ of execution.
Adut’s argument that the trial court’s pronouncement is not an order
for purposes of section 177.5 is meritless. It rests entirely on In re Marriage
of Drake (1997) 53 Cal.App.4th 1139, a case that stands for the proposition
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that a trial court may properly file a written order that differs from its oral
ruling when the ruling has not been entered in the minutes. (Id. at p. 1170.)
That is plainly not the situation here. Adut fails to address case law
upholding the issuance of sanctions under section 177.5 for disobeying an oral
instruction, which is the situation here. (See Seykora v. Superior Court
(1991) 232 Cal.App.3d 1075, 1078, 1084 [sanction under section 177.5
properly imposed for disobeying oral instruction that counsel remain in
courtroom to complete certain business].)
We find People v. Ward (2009) 173 Cal.App.4th 1518 (Ward) (another
case not discussed by Adut) instructive. In Ward, a defense attorney was
instructed not to use the words “prosecutorial misconduct” or raise the issue
in front of the jury. (Id. at pp. 1522-1523.) The Court of Appeal concluded
that sanctions under section 177.5 could appropriately be imposed where the
attorney in argument to the jury nevertheless “began to suggest that the
prosecutor did improper things during the course of the trial,” and then
“blurted out, ‘And that is prosecutorial misconduct’ ” in response to the trial
court’s effort to stop him. (Id. at pp. 1529-1530.) No written order was
required for the imposition of sanctions in Ward, nor has Adut explained why
one is required here.
We conclude that the trial court’s statement at the December 2019
hearing staying enforcement of the April 2019 order is an order for the
purposes of section 177.5, and we need not reach Adut’s arguments
concerning the minute order.
2. Second Argument
Adut argues that the order staying enforcement of the discovery
sanctions was invalid because the statutory requirements for issuance of a
stay had not been fulfilled. The argument is equally meritless. Even if Adut
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believed that the stay order was issued in error, she should not have
disobeyed it. (See People v. Chong (1999) 76 Cal.App.4th 232, 243 [citing
Bus. & Prof. Code, §§ 6068 & 6103 for the proposition that “[a]n attorney
must not willfully disobey a court’s order and must maintain a respectful
attitude toward the court”].) Adut had other avenues available, such as
motions for reconsideration or to set aside the order, or a writ petition or
appeal.
Further, Adut fails to show that the order was invalid. She notes that
Schilders never consented to the stay, citing sections 917.1 and 918, which
require an adverse party to consent to the stay of an order for the payment of
money if the stay would extend more than 10 days beyond the last day on
which a notice of appeal of the order could be filed. But Adut makes no
showing that the stay imposed by the trial court extended for more than 10
days beyond the last date on which a notice of appeal from the April 2019
order could be filed (§ 918, subd. (b)), or even that the April 2019 order was
ripe for appeal. We do not undertake to make the showings for her. (See
Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [appellate court is
“not required to examine undeveloped claims or supply arguments for the
litigants”] (Allen).)
3. Third Argument
Adut’s final argument is that the court erred in sanctioning her for
advocacy on behalf of her client. This argument is not supported by any
authority, and so we reject it. (See Allen, supra, 234 Cal.App.4th at p. 52. [a
point not supported by legal argument with citation to authority is treated as
forfeited and passed without consideration].) 6
6Adut concedes that enforcement of the April 2019 order would have
resulted in a payment to Adut of over $21,000. We note that the trial court
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In sum, Adut fails to show error in the trial court’s imposition of
sanctions against her under section 177.5.7
DISPOSITION
The challenged orders are affirmed.
concluded that Adut sought to enforce the monetary sanction in her own self-
interest.
7 In the conclusion of her appellate brief, Adut asks not only that we
reverse the sanctions orders, but also seeks an order that a different judge
preside over the case below going forward. We disregard that additional
request, as it is not supported by any argument or citation to authority.
(Allen, supra, 234 Cal.App.4th at p. 52.)
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_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, Acting P.J.
_________________________
Kline, J.*
A161177, A161576, A162373, Stupp v. Schilders
*Assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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