In re Marriage of Bianco

Filed 11/22/13
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of GREGORY J. and
MARCELA BIANCO.
D062061
GREGORY J. BIANCO,
Respondent, (Super. Ct. No. D520702)
v.
MARCELA BIANCO,
Respondent;
WINIFRED WHITAKER,
Appellant.
APPEAL from orders of the Superior Court of San Diego County, William H.
McAdam, Judge, and Edlene C. McKenzie, Commissioner. Reversed.
Law Office of Carolyn Chapman and Carolyn Chapman for Appellant Winifred
Whitaker.
Linda Cianciolo for Respondent Gregory Bianco.
INTRODUCTION
Attorney Winifred Whitaker appeals from February and March 2012 orders jointly
and severally sanctioning her $43,000 under rule 2.30(b) of the California Rules of Court
(rule 2.30(b)) for violating the California State Bar Rules of Professional Conduct by
negligently hiring an attorney ineligible to practice law to assist her in representing wife
in a dissolution trial.1 Whitaker contends the court abused its discretion in sanctioning
her because: (1) it is unclear from the record whether husband sought sanctions under
rule 2.30(b); (2) the court based the orders on an erroneous finding Whitaker had
committed an ethical violation; (3) Whitaker demonstrated good cause for the court not to
sanction her; (4) the court failed to consider the burden on Whitaker before imposing the
sanctions jointly and severally; and (5) the sanctions order included amounts not
authorized by rule 2.30(b).
We requested and received supplemental briefing on the foundational issue of
whether rule 2.30(b) authorized the court to impose sanctions for a violation of the Rules
of Professional Conduct in a family law proceeding. We conclude rule 2.30(b) did not
authorize the sanctions and, consequently, we reverse the court's orders.2
1 Whitaker also appeals from an August 2011 order granting a mistrial. This order
is not appealable. (Code Civ. Proc., § 904.1; Juarez v. Superior Court (1982) 31 Cal.3d
759, 765; Heavy Duty Truck Leasing, Inc. v. Superior Court (1970) 11 Cal.App.3d 116,
119.) Even if the order were appealable, the appeal is untimely as Whitaker filed the
notice of appeal more than 180 days after the court entered the order in its minutes. (Cal.
Rules of Court, rule 8.104(a)(1)(C), (c)(2) & (e).) Consequently, we decline to address
any appellate issues related to the propriety of the mistrial order.
2 Given our disposition, we need not address Whitaker's requests for judicial notice.
2
BACKGROUND
Whitaker represented wife in dissolution proceedings. Whitaker engaged attorney
Thomas W. Smith to act as her cocounsel at trial and he so acted even though he was
ineligible to practice law at the time because of failing to comply with mandatory
continuing legal education requirements. On the last day of the trial, the court learned of
Smith's ineligibility. The court declared a mistrial and invited husband to bring a
sanctions motion.
Husband subsequently moved for sanctions under Family Code section 271
(section 271) and rule 2.30(b) for Whitaker's violation of rules 1-300 and 1-311 of the
Rules of Professional Conduct.3 The court denied the motion under section 271, but
granted it under rule 2.30(b). At a later hearing, the court determined the amount of
sanctions to be $43,000, which the court imposed jointly and severally on Whitaker and
Smith.
DISCUSSION
Rule 2.30(b) provides in part: "In addition to any other sanctions permitted by
law, the court may order a person . . . to pay reasonable monetary sanctions . . . for failure
with good cause to comply with the applicable rules. For the purposes of this rule,
3 Rules of Professional Conduct, rule 1-300(A) provides: "A member shall not aid
any person . . . in the unauthorized practice of law." Rules of Professional Conduct, rule
1-311(B)(2) provides: "A member shall not employ, associate professionally with, or aid
a person the member knows or reasonably should know is a[n] . . . involuntarily inactive
member to perform the following on behalf of the member's client: [¶] . . . [¶] Appear on
behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator,
mediator, court, public agency, referee, magistrate, commissioner, or hearing officer."
3
'person' means . . . a party's attorney . . . . If a failure to comply with an applicable rule is
the responsibility of counsel and not of the party, any penalty must be imposed on
counsel and must not adversely affect the party's cause of action or defense." Rule
2.30(b) applies to "the rules in the California Rules of Court relating to general civil
cases, unlawful detainer cases, probate proceedings, civil proceedings in the appellate
division of the superior court, and small claim cases." (Cal. Rules of Court, rule 2.30(a),
italics added.)
Rule 2.30(b) does not apply in this case for two reasons. First, the Rules of
Professional Conduct are not part of the California Rules of Court. They are part of the
Rules of the State Bar of California.4 (See Cal. Rules of Court, rule 1.4; Rules of State
Bar, rule 1.5(H).) Second, this is not a general civil case. " 'General civil case' means all
civil cases except . . . family law proceedings." (Cal. Rules of Court, rule 1.6(4).)
As rule 2.30(b) does not authorize sanctions for violations of the Rules of
Professional Conduct nor does the rule apply in family law proceedings, the rule did not
authorize the sanctions imposed in this case. We must, therefore, reverse the sanctions
order.5
4 The California Rules of Court are adopted by the Judicial Council of California
and, in some instances, the California Supreme Court. (Cal. Rules of Court, rule 1.3; Cal.
Const., art. VI, § 6, subd. (d).) The Rules of Professional Conduct are adopted by the
Board of Governors of the State Bar of California and approved by the California
Supreme Court. (Rules Prof. Conduct, rule 1-100(A); Bus. & Prof. Code, § 6076.)
5 Effective January 1, 2013, after the conduct at issue in this case occurred, the
Judicial Council of California adopted a new rule authorizing sanctions for violations of
4
DISPOSITION
The court's orders jointly and severally sanctioning Winifred Whitaker and
Thomas Smith $43,000 are reversed. The parties are to bear their own appeal costs.
MCCONNELL, P. J.
WE CONCUR:
NARES, J.
AARON, J.
court rules in actions or proceedings brought under the Family Code. (Cal. Rules of
Court, rule 5.14.)
5