Oct 07, 2022
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TENTATIVE RULINGS – FAMILY LAW
 
DEPT. 21  LAW & MOTION CALENDAR
Honorable Peter Ottenweller
Friday, October 7, 2022 at 9:30 a.m. in Dept. 21
 
The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact the Judicial Assistant by telephone at (707) 521-6604 by 4:00 p.m. on the day before the hearing. Any party requesting an appearance must notify all other opposing parties of their intent to appear.
PLEASE NOTE: If argument is requested in this matter you may appear in person or remotely via Zoom. To appear via Zoom please see the Zoom information below. 
 
TO JOIN “ZOOM” ONLINE,
D21 – Family Law – Law & Motion Calendar
MeetingID: 812-3926-6019
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TO JOIN “ZOOM” BY PHONE,
Call *67 1 669 900 6833 (same meeting ID and password as listed above)
SFL60153, LUONGO DISSO
Child Custody/Visitation
TENTATIVE RULING: The Court is requesting the parties to appear. Parties may appear via zoom.
 
 
SFL60153, LUONGO DISSO:
Change of Venue
TENTATIVE RULING: No Motion to Change Venue was filed. This matter is dropped.
 
 
SFL077842, LOPEZ/LOPEZ DISSO:
TENTATIVE RULING: Mother’s Motion to Bifurcate is granted. Mother to file “Judgment of Dissolution Only reserving other issues” within 30 days of this order and serve other party.
 
 
SFL081526, MURPHY/HENDERSON DISSO:
TENTATIVE RULING: Respondent’s Request for Order for Enforcement of Judgment, Breach of Fiduciary Duty, and Sanctions is DENIED. Petitioner’s Request for Order to seal Exhibits is GRANTED.
Facts and History
            On November 20, 2018, Petitioner (“Wife”) filed for dissolution of marriage with minor children from Respondent (“Husband”).
 
            On May 10, 2021, a Judgment for Dissolution (“Judgment”) was filed which included a Marital Settlement Agreement with an effective date of January 12, 2021 (“Agreement”). The Agreement addressed the characterization and division of a Fidelity 401k account in the name of Wife as well as multiple other issues, which have not been addressed here as they are not relevant to this Request for Order.
 
            On August 20, 2021, the Parties filed a Stipulation for Division of Individual Retirement Account and Order (“Stipulation”) related to Wife’s “certain assets in an Individual Retirement Account (the ‘IRA’), invested in E*Trade Securities LLC account,” in order to allocate the benefits between the Parties. Pursuant to the Stipulation, E*Trade was to establish separate accounts “[a]s soon as administratively feasible” and Husband was to complete such forms as E*Trade may require to establish the separate account. (Stipulation, ¶3.) Additionally, the Stipulation states “[t]he balance of [Wife’s] benefit under the IRA which are not awarded to [Husband] by this Order are confirmed to [Wife] as [Wife’s] sole and separate property.” (Stipulation, ¶4.)[1]
 
            On July 14, 2022, Husband filed this Request for Order seeking enforcement of the Judgment, alleging Wife’s breach of her fiduciary duty, and requesting Family Code section 271 Sanctions.
 
             On August 8, 2022, Wife filed in opposition.
 
Request for Order
             Husband requests the Court 1) enforce the Judgment; 2) find Wife has breached her fiduciary duty to Husband; and 3) award sanctions of no less of $5,000. Wife has requested the Court seal the Exhibits to this Request for Order and the Order to Show Cause filed on July 14, 2022.
 
Enforce the Judgment
 
            Husband requests the Court enforce the Judgment, specifically the Stipulation, pursuant to Family Code section 290. Husband does not provide any additional authority to the Court in support of this request. 
 
            Family Code section 290 states a “judgment or order made or entered pursuant to this code may be enforced by the court by execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary.” By plain language of the statute, its application is discretionary.
 
            It appears to the Court, based on the Parties’ declarations, Wife would like to resolve and this issue just as Husband would. It seems the challenge is related to a disconnect as to what documentation required by E*Trade to do so. While Husband states, “Wife has continued to fail and refuse to provide statements, complete E*TRADE IRA Distribution Form, and continues to fail to contact and instruct E*TRADE to divide the account,” Wife states she has contacted E*Trade and that “E*Trade needs [Husband’s] identification and for [Husband] to complete the correct paperwork.” (Husband Declr., ¶5; Wife Declr., ¶14.)
 
            As it appears both Parties are attempting to follow the Judgment, the Court will not take action to enforce the Judgment at this time, as is within its discretion. However, the Court orders, pursuant to Family Code section 290: 1) Wife to provide Husband with a copy of the forms required by E*Trade within 10 days of the date of this hearing; 2) Husband to complete the forms provided by Wife and provide any supporting documentation required by E*Trade to Wife within 10 days of receipt of the forms from Wife; and 3) Wife to submit the completed forms and supporting documentation provided to her by Husband to E*Trade within 10 days of receipt of the completed forms from Husband.
 
Breach of Fiduciary Duty
            Husband alleges Wife breached her fiduciary duty to Husband by “failing and refusing to divide the community interest in her retirement funds” and for “without [Husband’s] knowledge consent” withdrawing $50,000 from her retirement account. (Husband Declr., ¶¶3-4.) He now requests the Court “make appropriate orders to rectify that breach … such as awarding 100% of the account” to him and awarding attorney fees. (Id.)   
         
            As Husband correctly notes, Family Code section 1100(e) sets forth the obligation of a spouse or former spouse in the management and control of community property assets. Section 1100(e) states, in relevant part:
 “Each spouse shall act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships which control the actions of persons having relationships of personal confidence as specified in Section 721, until such time as the assets and liabilities have been divided by the parties or by a court.”
 
A.    Refusal to divide the community interest in Wife’s retirement funds
            As addressed above, the Court does not find Wife is refusing to divide the community property retirement funds. Therefore, this assertion does not amount to a breach of her fiduciary duty to Husband.
 
B.     Withdrawal of $50,000 from Wife’s retirement account
            In Section 6.2.3 of the Agreement the Parties agree the Qualified Domestic Relations to divide the retirement benefits provided for in the Fidelity 401k plan shall be prepared by George McCauslan. (Husband’s Motion, Exhibit A.) Mr. McCauslan in fact prepared the Stipulation for this purpose, which was executed by the parties.
 
            On April 23, 2021, attorney for Husband sent a letter to Mr. McCauslan asserting Wife had withdrawn $50,000 from the Fidelity account on March 21, 2019 and stating “[a]s long as my client’s community property share, including his share of the gains, is not diminished as a result of Wife taking the $50,000 when she did, we are willing to accept the QDRO. Please confirm his cp share is not diminished.” (Husband’s Motion, Exhibit F.)
 
            In response to this letter, Mr. McCauslan sent an email on April 30, 2021 stating, in relevant part “If you review my spreadsheet, you will note that [Wife] had just over $50,000 in the account at 12/31/11, just prior to the date of marriage. This amount had grown with investment gains to $121,287.04 at the time of the rollover. The $50,000 withdrawal just after the rollover was taken was from [Wife’s] separate property interest, and has no effect on the community share of the account.” (Wife’s Motion, Exhibit 9.)
 
            Accordingly, based on the review performed by Mr. McCauslan, as agreed to by the Parties, the $50,000 at issue is Wife’s separate property for which she owes no fiduciary duty to Husband. As no fiduciary duty as to this share of the retirement account, the Court finds Wife has not breached her fiduciary duty to Husband by withdrawing the funds.
 
Attorney’s Fees & Sanctions
            Husband seeks attorney’s fees and monetary sanctions of no less than $5,000pursuant to Family Code section 271.
 
            Family Code section 271 authorizes the court to award attorney’s fees and costs as a sanction for conduct of the other party which frustrates the settlement of litigation. An award of sanctions under Family Code section 271 is within the discretion of the court. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1524.)
 
            Here, Husband requests sanctions for Wife’s failure to finalize the division of the community property assets. Based on the filings, it appears both parties may be responsible for the delay in resolution of this issue. Therefore, the Court will not issue sanctions. 
Seal Exhibits
            Wife requests the Court seal Exhibits attached to Husband’s Order to Show Cause and Request for Order filed on July 14, 2022 in order to protect her personal identifying information. Because the Exhibits contain Wife’s personal identifying information such as her social security number, 401k account number, date of birth, and full name the Court GRANTS Wife’s request to seal the Exhibits.
Conclusion
            Therefore, the Court DENIES Husband’s Request for Order for Enforcement of Judgment, Breach of Fiduciary Duty, and Sanctions. The Court GRANTS Wife’s request to seal Exhibits and orders: 1) Wife to provide Husband with a copy of the forms required by E*Trade within 30 days of the date of this order; 2) Husband to complete the forms provided by Wife and provide any supporting documentation required by E*Trade to Wife within 30 days of receipt of the forms from Wife; and 3) Wife to submit the completed forms and supporting documentation provided to her by Husband to E*Trade within 10 days of receipt of the completed forms from Husband.
 
 

[1] There is confusion between the Parties as to whether Wife’s retirement account is in IRA or 401k. Wife asserts she does not have an IRA with E*Trade, but a 401k, which is supported by the Agreement and the E*Trade account statement. (Wife Declr., ¶¶1-5; Exhibit 2.) 

 
 
SFL084346, MONACHELLO/MONACHELLO DISSO:
TENTATIVE RULING:
Petitioner’s Motion to Bifurcate Dissolution from other issues is granted. Petitioner is to provide a “Judgment of Dissolution, reserving all other issues” within 30 days of this order. Once the Judgment is signed Petitioner must serve Respondent with Judgment.
 
 
SFL087031, BAPTISTA/BAPTISTA DISSOLUTION:
TENTATIVE RULING:
Attorney Faircloth’s Motion to Withdraw is granted.
 
 
SFL087230, ALTAMIRANO/MUNOZ DISSO:
TENTATIVE RULING:
Attorney Tartuffe’s Motion to Withdraw is granted.
 
 
SFL087957, LUEVANO VALDEZ SIERRA FLORES DISSO:
TENTATIVE RULING:
Respondent’s Motion to vacate Default Judgment pursuant to CCP§473 is granted.
Respondent shall prepare order vacating default within 15 days of this order. Respondent’s 2/8/2022 RFO is vacated. Respondent to file and serve new RFO if he wishes to do so.  
 
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