Levine v. Berschneider

Filed 10/29/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
KIM LEVINE et al., 2d Civil No. B300824
(Super. Ct. No. 17CV03278)
Plaintiffs, (Santa Barbara County)
v.
JANET BERSCHNEIDER,
Defendant and Respondent;
JOHN B. RICHARDS,
Objector and Appellant.
John B. Richards, an attorney, purports to appeal from the
trial court’s order finding him in contempt. He also appeals from
the order to “pay monetary sanctions in the amount of $5,310.00
for his lack of candor [with the trial court about the fact that]
settlement funds had been paid.” He contends the trial court
lacked both personal and subject matter jurisdiction to impose
sanctions against him. We dismiss the attempt to appeal from
the contempt finding and affirm the sanctions order.
Facts
Appellant represented tenants in litigation against their
landlord, respondent Janet Berschneider. Harry Safarian
represented respondent. The lawsuit settled. Because one of the
plaintiffs was a minor, the settlement required approval from the
trial court. On April 17, 2019, the trial court approved the
minor’s compromise. On May 22, 2019, appellant filed an ex
parte application to shorten time on a motion to enforce the
settlement agreement. He contended respondent and her counsel
were taking too long to pay the plaintiffs the amounts agreed to
in their settlement. The trial court set the matter for hearing on
June 7, 2019. On June 3, 2019, appellant received checks from
Safarian’s office, paying the settlement in full.
Appellant nevertheless appeared at the June 7 hearing. He
told the trial court, “I haven’t received word from opposing
counsel [Safarian]. I don’t know – has there been any
communication with the Court?” The court said there had not
been. Appellant confirmed that he served opposing counsel by
email with the motion to enforce the settlement agreement.
The trial court granted the motion. Its order found
Safarian “in contempt for willfully failing to comply with [the]
April 17, 2019 order,” and ordered respondent “to immediately
disburse” the settlement funds. The trial court also ordered
Safarian to pay monetary sanctions of $4,630.30 to the plaintiffs
within 10 days. At no time during the brief June 7 hearing did
appellant inform the trial court that the settlement had already
been paid in full.
Three days later, respondent filed an ex parte application
for relief from the June 7 order pursuant to Code of Civil
2
Procedure section 4731; for reconsideration of the order pursuant
to §1008; for an order to show cause against appellant for
presenting false information to the court; and alternatively for an
order staying the June 7 order pending hearing on a regularly
noticed motion. Respondent’s counsel explained that he did not
attend the June 7 hearing because a staff member mistakenly
informed him the hearing had been taken off calendar.
Respondent requested the trial court reconsider its order and
consider sanctioning appellant because he did not inform the
court that he received the settlement checks before the June 7
hearing.
Appellant filed a written opposition to the ex parte
application in which he contended there was no basis for relief
under either section 473 or section 1008. He also contended that
his statements at the June 7 hearing were not false because the
trial court never asked him whether he had received the
settlement checks.
Appellant made what he referred to as a special
appearance at the June 12 hearing on respondent’s ex parte
application. He argued the trial court lacked personal
jurisdiction over him because he had not been properly served
with the ex parte application. He also argued the court lacked
subject matter jurisdiction because there was no statutory basis
for an award of sanctions against him.
The trial court took the matter under submission. On June
14, it entered an order vacating the sanctions against Safarian.
It also issued an order to show cause against appellant “based
All further statutory references are to the Code of Civil
1
Procedure.
3
upon his lack of candor with the Court,” and set a hearing date
and a briefing schedule.
On June 21, appellant filed an opposition to the motion for
reconsideration, which the trial court had already granted, and to
the order to show cause. He again argued that he was not subject
to sanctions because he made no false statements to the trial
court. Appellant did not repeat the jurisdictional arguments he
made at the June 12 hearing.
On July 15, the trial court filed its Order After Hearing in
which it found appellant in contempt based on his lack of candor
at the June 7 hearing and ordered him to pay sanctions of $5,310
to Safarian. It found that it had personal jurisdiction over
appellant because his June 21 written opposition to the Order to
Show Cause was a general appearance. (§410.50, subd. (a).) The
trial court also concluded it had subject matter jurisdiction
because appellant’s lack of candor at the June 7 hearing was both
contemptuous and conduct in bad faith within in the meaning of
sections 128.5 and 1209.
Discussion
Contempt Appealability.
A trial court’s judgment or order in a contempt matter is
“final and conclusive.” (§1222.) It is not, however, appealable.
(§904.1, subd. (a)(1).) Review of a contempt order is available
only by petition for extraordinary writ. (In re Buckley (1973) 10
Cal. 3d 237, 240; Davidson v. Superior Court (City of Mendota)
(1999) 70 Cal. App. 4th 514, 522.) We decline to construe the
notice of appeal as a petition for an extraordinary writ. (Imuta v.
Nakano (1991) 233 Cal. App. 3d 1570, 1584.)
4
Sanctions Appealability.
The trial court imposed sanctions pursuant to section
128.5. An order directing payment of monetary sanctions is
directly appealable, where, as here, the amount of the sanction
exceeds $5,000. (§904.1, subd. (a)(12).)
Counsel’s Duty of Candor.
In his briefs on appeal, and again at oral argument,
appellant protested that he made no false or misleading
statements to the trial court because the judge never asked
whether he had received the settlement checks. He contends that
he was entitled to sanctions against respondent’s counsel, even if
the settlement was paid, because he incurred fees to demand
payment and to file the motion the enforce the settlement
agreement. According to appellant, the trial court judge had a
duty to ask whether the settlement had been paid, if that fact
was important to the judge. We wholeheartedly reject this
reasoning. It was not the trial court’s duty to inquire whether
any material fact had changed since appellant filed the motion.
Instead, appellant’s duty of candor required him to inform the
court that the settlement had been paid.
An attorney is an officer of the court and owes the court a
duty of candor. (In re Reno (2012) 55 Cal. 4th 428, 510; Roche v.
Hyde (2020) 51 Cal. App. 5th 757, 817.) This means that, “A
lawyer shall not . . . knowingly make a false statement of fact or
law to a tribunal or fail to correct a false statement of material
fact or law previously made to the tribunal by the lawyer.” (Cal.
Rules Prof. Conduct, rule 3.3, subd. (a)(1).) In a similar vein,
section 6068 of the Business and Professions Code explains that
every attorney has a duty “never to seek to mislead the judge or
5
any judicial officer by an artifice or false statement of fact or
law.” (Bus. & Prof. Code, §6068, subd. (d).)
The duty of candor is not simply an obligation to answer
honestly when asked a direct question by the trial court. It
includes an affirmative duty to inform the court when a material
statement of fact or law has become false or misleading in light of
subsequent events. (In re Reno, supra, 55 Cal.4th at pp. 510-511
[duty to inform court when a claim in a writ petition is subject to
a procedural bar]; Love v. State Dept. of Education (2018) 29
Cal. App. 5th 980, 990 [duty to acknowledge contrary authority];
Jackson v. State Bar of California (1979) 23 Cal. 3d 509, 513 [“The
representation to a court of facts known to be false is presumed
intentional and is a violation of the attorney’s duties as an officer
of the court”].)
In Grove v. State Bar of California (1965) 63 Cal. 2d 312,
our California Supreme Court dealt with an attorney who was
less than candid with the trial court. The attorney was twice
informed by opposing counsel that he could not attend a certain
hearing. The attorney allowed the trial court to believe that the
matter was uncontested. The offending attorney “contends that
the failure to convey . . . [opposing counsel’s request for a
continuance] does not constitute misleading ‘the judge or any
judicial officer by an artifice or false statement of fact or law.’
(Bus. & Prof. Code, section 6068, subd. (d).) There is no merit to
this contention. The concealment of a request for a continuance
misleads the judge as effectively as a false statement that there
was no request. No distinction can therefore be drawn among
concealment, half-truth, and false statement of fact. [Citation.]
‘It is the endeavor to secure an advantage by means of falsity
which is denounced.’ [Citation.]” (Id. at p. 315.)
6
So here. Counsel’s decision to not tell the trial court that
he had received “word” from opposing counsel, was a concealment
and a “half-truth.” This violates the attorney’s obligation as an
officer of the court to be candid with the court. This was intended
to secure an advantage and it worked, temporarily. Counsel had
received the settlement checks. This is not an insignificant fact.
Every trial court hearing a similar motion would want to be
apprised of this development.
Subject Matter Jurisdiction.
Appellant contends the trial court lacked subject matter
jurisdiction to award sanctions against him because there is no
statutory basis for the award and because he did not make
misleading or false statements to the trial court. He is incorrect.
First, section 128.5 authorizes the trial court to order an
attorney “to pay the reasonable expenses, including attorney’s
fees, incurred by another party as a result of actions or tactics,
made in bath faith, that are frivolous or solely intended to cause
unnecessary delay.” (Id., subd. (a).)2 A misrepresentation of
material fact is subject to sanction under section 128.5. (Young v.
Rosenthal (1989) 212 Cal. App. 3d 96, 128.)
At the June 7 hearing, appellant told the trial court that he
had not “received word” from his opposing counsel, even though
they had exchanged numerous emails and the settlement was
paid in full four days before the hearing. When the trial court
ordered opposing counsel to immediately disburse the settlement
funds, appellant failed to inform the court that its order was moot
because the funds had already been received. The trial court did
2 The statute clarifies that an action is “frivolous” where it
is “totally and completely without merit or for the sole purpose of
harassing an opposing party.” (§ 128.5, subd. (b)(2).)
7
not abuse its broad discretion when it awarded sanctions against
appellant based on these misrepresentations of material facts.
(Wallis v. PHL Associates, Inc. (2008) 168 Cal. App. 4th 882, 893.)
Notice Adequacy.
Appellant contends respondent’s Application for Ex Parte
Order did not provide him with adequate notice of the factual
basis for the requested order to show cause. But appellant never
objected to the alleged lack of notice in the trial court. Instead,
he opposed respondent’s ex parte application on the merits,
contending his statements were not false and that his receipt of
the settlement funds did not moot his request for sanctions
against Safarian. “In failing to raise the issue of inadequate
notice, [appellant] waived any objection he may have had upon
that ground.” (M.E. Gray Co. v. Gray (1985) 163 Cal. App. 3d
1025, 1034.)
Had the contention not been waived, we would reject it.
The June 10 ex parte application asked the trial court to issue an
“order to show cause against attorney John Richards for
presenting false information to the court . . . .” (Bold and
capitalization omitted.) It also offered a detailed factual basis for
the requested sanctions. Appellant received adequate notice of
the factual and legal bases upon which respondent sought
sanctions against him.
Personal Jurisdiction.
Appellant contends the trial court lacked personal
jurisdiction over him because he was not personally served with
the ex parte application and order to show cause. “A general
appearance by a party is equivalent to personal service of
summons on such party.” (§ 410.50, subd. (a).) Appellant made a
general appearance when he filed a written opposition to the ex
8
parte application in which he addressed the merits of the
application and order to show cause. “A party whose
participation in an action is limited to challenging the court’s
personal jurisdiction does not make a general appearance. Other
forms of participation, however, such as . . . opposing a motion on
the merits, ordinarily constitute a general appearance.” (Serrano
v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal. App. 4th 1014,
1029.) The trial court properly exercised personal jurisdiction
over appellant.
Conclusion
The judgment (Order After Hearing) dated July 15, 2019 is
affirmed. Costs on appeal to respondent. Pursuant to Business
and Professions Code section 6086.7, subdivision (a)(3), upon
issuance of the remittitur, the clerk is directed to forward a copy
of this opinion to the State Bar of California. Pursuant to
Business and Professions Code section 6086.7, subdivision (b),
the clerk is directed to notify appellant that this matter has been
referred to the State Bar.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
TANGEMAN, J.
9
Donna D. Geck, Judge
Superior Court County of Santa Barbara
______________________________
John B. Richards, in propria persona, for Appellant.
The Safarian Firm, Harry A. Safarian and Christina S.
Karayan for Defendant and Respondent.