Mar 01, 2015

LAW & MOTION TENTATIVE RULING – FAMILY LAW Dept. 23 

JUDGE BRADFORD J. DEMEO
IN COURTROOM 23
FRIDAY, February 20, 2015 @ 9:30 A.M.

 

Tentative Rulings

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) 521-6732 by 4:30 p.m., February 19, 2015. Any party requesting an appearance must notify all other opposing parties of their intent to appear. 

      

        

            

Scalamini v. Huffman SFL-27031

 

The request for sanctions pursuant to California Family Code § 271 should have been brought at the time responsive papers were filed for the July 29, 2014 hearing.  Nonetheless, this court has thoroughly reviewed this voluminous court file (17 volumes) and finds that Family code section 271 sanctions are not supported by the allegations in this Request for Order.  Respondent alleges that Petitioner’s response and declaration for the July 29, 2014, child support hearing was frivolous.  On review this Court finds that the content of the Response and Declaration appears relevant and is not frivolous.  Parties have a right to be heard, and may challenge another party’s allegations and assertions.  Respondent also alleges that the motion for reconsideration was frivolous.  Again, that motion does not appear to be filed in bad faith, and is supported with legitimate points and authorities.  All parties have the right to pursue their legal rights so long as it is not for the purpose of delay or with intent to prevent settlement.  It is viewed from an objective standard, not what each party subjectively feels is reasonable.  Rarely does a party in a high-conflict case such as this consider the other side’s position as reasonable.  It appears to this court, however, that both parties took a position on the matter which cannot be considered entirely unreasonable.  From an objective view, both parties had legitimate arguments relevant to the child support calculation.  Sanctions are DENIED. 

 

The request for production of “unaltered” documents is barred by the time limitations for bringing a motion to compel further production under CCP section 2031.310.    There has not been a sufficient showing of fraud for purposes of reopening discovery. Respondent alleges incomplete and altered document production in 2012 and 2013.  However, his remedy was to file a motion to compel further responses under the California Code of Civil Procedure.  The time to file that motion has long since run and is now barred.    Respondent currently relies on information that he had in 2013.  The law requires that he act promptly to compel further responses.  The time to act promptly has long since passed. 

 

The CCP section 128 claim is not properly pled and is not supported by reliable and credible evidence.   Respondent alleges that Petitioner’s Response and Declaration filed for the July 29, 2014 hearing, and the Motion for Reconsideration, were filed in bad faith.  We do not find this to be supported by the court record.  There were reasonable grounds to move for reconsideration in that the characterization of $27,000 “interest” directly affected the child support calculation.  The positions of the parties were not unreasonable, and do not have the indicia of bad faith.  Respondent’s claim of sanctions for violation of CCP section 128 is DENIED.

 

Regarding lawyer ethics, the court may consider unethical conduct in determining bad faith, but does not rule on alleged ethics violations.  It is the conduct that is the focus of the court, not the violation of ethical standards which are written and enforced by the State Bar of California.  Respondent’s request for an order on ethical violations is DENIED to the extent it asks for a determination that a party violated ethics rules and regulations. Further, the ABA Model Rules of Professional Conduct, and IRMO Williams (Iowa Ct. App.1988) 421 N.W.2d 160, cited by Respondent in his moving papers, are not the law in California, are not recognized authority in California, are not proper for citation in moving papers, and may not be considered by the court as precedent.      

 

The moving papers make several other requests.  Respondent requests clarification of tax deductions, reimbursement for extracurricular activities, and imputed income to mother.  These issues are addressed by implication in the court order for child support, and in the order on motion for reconsideration heard on January 22, 2015.  These issues are not properly before this court for this hearing. (California Family Code § 213)

 

Respondent’s further requests for relief contained in his late-filed Declarations (February 17, 2015) are not properly noticed and not properly before this court.  The request for fees based on Respondent’s time and his staff’s time, and further sanctions, is DENIED. 

 

IT IS ORDERED that Respondent’s Request for Order is DENIED in its entirety for the reasons stated above.  

 

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