paula salinger fraud on the court - violations of state law, court rules, attorney ethics, moral...
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Serial violations of state law, court rules, State Bar Act, and Rules of Professional Conduct by Sacramento divorce attorney Paula Salinger. Catalogued and documented in court filing, declaration, and memorandum of points and authorities filed by indigent, disabled pro per opposing party. The opposing party also is a domestic violence victim, according to court records. Paula D. Salinger is a sworn temporary judge of Sacramento Superior Court and officer of the Sacramento County Bar Association Family Law Executive Committee. Salinger is a partner at the family law firm Woodruff, O'Hair, Posner & Salinger where all partners also serve as judge pro tems. For complete coverage of Paula Salinger misconduct visit this URL at Sacramento Family Court News: http://sacramentocountyfamilycourtnews.blogspot.com/search/label/PAULA%20SALINGERSacramento Family Court News homepage: http://sacramentocountyfamilycourtnews.blogspot.comCalifornia Judicial Branch News Network: cjbnn.com.TRANSCRIPT
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1 RESPONSIVE DECLARATION OF IN OPPOSITION TO PETITIONERS MARCH 28, 2012 MOTION
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Marriage of Sacramento C se No. Declaration of and Exhibits i ion to Petitioners Ma , Motion for Seven Orders.
I, declare as follows:
1. I am the respondent in the above-referenced matter, and the
responding party to petitioner request for seven
assorted orders. I have personal knowledge of the facts set forth
herein. If called as a witness in this matter, I could testify
competently to the facts stated below.
2. Filed concurrently with this declaration is a supporting
memorandum and a request for judicial notice. My response to
Petitioners motion, including the memorandum and request for
judicial notice are based on the authority, forms and instructions in
the California Practice Guide series published by The Rutter Group,
including Family Law (Hogoboom & King), Civil Procedure Before Trial
(Weil & Brown), Civil Trials and Evidence (Wegner et al.) and
Professional Responsibility (Vapnek et al.).
3. Petitioners attorney has worked as a family law paralegal
or attorney since 1992. I attach hereto as Exhibit A, as foundation
for my statement, a true and correct copy of a page from the
January/February 2007 issue of Sacramento Lawyer magazine containing
the curriculum vitae of Petitioners attorney, Paula D. Salinger.
4. Petitioners attorney was appointed as a temporary judge in
April, 2011. To become a judge pro tem, the attorney requested and
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3 RESPONSIVE DECLARATION OF S IN OPPOSITION TO PETITIONERS MARCH 28, 2012 MOTION
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statutes. Alternatively, Petitioners motion should be dismissed
until it complies with the court rules and statutes cited herein, and
in the supporting memorandum.
9. To effectively respond to Petitioners motion, to preserve
my rights of trial and appellate court review of the adjudication of
Petitioners motion, and to provide the basis for my sanctions
request, I must file with my response written evidentiary objections
under Code of Civil Procedure 436 and 431.10.
10. By law, my written evidentiary objections must cite to the
line number in Petitioners declaration containing the material
objected to. Cal. Rules of Court Rule 3.1354(b)(2) requires for each
objection reference to the line number of the material objected to.
Petitioners declaration was filed by her attorney without line
numbers in violation of Cal. Rules of Court Rule 2.108(4).
11. Without line numbers I cannot comply with Rule 3.1354(b)(2)
and cannot effectively identify for the Court the objectionable
material in Petitioners declaration.
12. If and when the declaration complies with Rule 2.108(4), I
will make line-by-line evidentiary objections under the applicable
Evidence Code sections including 210, 350 (relevancy), 352
(prejudicial, confusing issues, time-wasting), 403 (foundation),
702 (personal knowledge), 801, 803 (opinion), 1200 (hearsay) and
especially 780 (credibility, truthfulness).
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4 RESPONSIVE DECLARATION OF S IN OPPOSITION TO PETITIONERS MARCH 28, 2012 MOTION
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13. Under Family Code 2335 I also will object generally and
to specific portions of the declaration that contain fault evidence
in violation of 2335.
14. Petitioners declaration does not comply with Cal. Rules of
Court Rules 2.108(4)[line numbers in left margin]; 2.108(1)[lines
must be one and one half or double-spaced]; and 2.110 [bottom margin
footer]. The declaration also violates Local Rule 3.02 [failure to
comply with Cal. Rules of Court].
15. I also cannot file an effective and lawful supporting
memorandum until Petitioners declaration complies with Cal. Rules of
Court Rule 2.108(4). My memorandum will reference specific portions
of Petitioners declaration. Cal. Rules of Court Rule 3.1113(k)
requires such references to specify the paragraph or line number in
the declaration.
16. Petitioners memorandum contains non-specific, generic
references to prior proceedings and evidence, and no citations to the
record or to Petitioners declaration in violation of Cal. Rules of
Court, Rule 3.1113(b)[memorandum must contain statement of facts and
concise statement of the evidence relied on]. The memorandum appears
to misstate the record and to rely on false, misleading or omitted
material facts. I cannot effectively respond to, rebut or impeach the
references referred to in Petitioners memorandum until it complies
with Rule 3.113(b).
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5 RESPONSIVE DECLARATION OF S IN OPPOSITION TO PETITIONERS MARCH 28, 2012 MOTION
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17. Petitioners supporting memorandum also does not comply
with Cal. Rules of Court Rule 3.1113(k)[references to supporting
declarations must reference page, paragraph and line number]. The
memorandum appears to reference Petitioners declaration and exhibit
but does not provide the information required by Rule 3.1113(k).
18. As set forth in my supporting memorandum, all of
Petitioners prior pleadings two motions and five responsive
declarations have had significant and substantive errors which
appear on the face of the pleadings. Each of the filings has violated
state and local court rules and statutory law. The violations are
significant, relevant and not trivial.
19. All of Petitioners previous declarations and points and
authorities have contained false, immaterial or irrelevant material
facts, prohibited fault evidence, and omitted material facts, as
further set forth in the attached supporting memorandum.
20. The facts and circumstances surrounding Petitioners
defective filings suggest that the errors are deliberate and
calculated to gain a litigation advantage. The errors consistently
work to Petitioners advantage and my disadvantage. Based on the
training and experience of Petitioners attorney, it is improbable
that the errors are inadvertent.
21. It would be futile for me to ask Petitioners attorney to
conform the motion, declaration, and memorandum to Cal. Rules of
Court. The attorney has denied all past similar requests.
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6 RESPONSIVE DECLARATION OF S IN OPPOSITION TO PETITIONERS MARCH 28, 2012 MOTION
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22. For example, in October and November 2010 to the attorney I
requested that the orders prepared after the Oct. 27, 2010 hearing be
accurate. On October 29, 2010, in an email the attorney confirmed the
minute orders issued by the court were incomplete. Accurate orders
were critical to protect the rights of both parties because there was
not a court reporter at the hearing. The minute orders did not
memorialize that the Court had denied the attorneys request that a
sanctions assessment against me be assessed against my share of
community property. The court denied the request and ordered that the
sanction assessment be paid in monthly installments. The change was
relevant and material because - knowing that I was indigent and
without funds to make the first payment - the Court appeared to
intentionally structure the due date of the first payment to coincide
with the first settlement conference. The change logically inferred
an intent to use economic coercion to compel me to accept whatever
settlement terms were offered by Petitioner or face the threat of an
enforcement action, and potential additional penalties after missing
the first payment. Attached hereto as Exhibit C is a true and correct
copy of the Oct. 29, 2010 correspondence I received from the
attorney.
23. After in writing confirming that her sanction payment
request had been denied by the court, in a Nov. 18, 2010 letter the
attorney nonetheless refused to include the denial in the order after
hearing. In the letter, the attorney falsely stated that her proposed
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7 RESPONSIVE DECLARATION OF S IN OPPOSITION TO PETITIONERS MARCH 28, 2012 MOTION
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order after hearing accurately reflects the courts orders.
Attached hereto as Exhibit D is a true and correct copy of the Nov.
18 letter.
24. Also at the Oct. 27, 2010 hearing where no court reporter
was present, the Court sua sponte issued constructive rulings on four
matters in which I was the moving party but which were calendared for
the following month. The rulings were irregular in that the matters
were not on the calendar for Oct. 27, and Petitioner had yet to file
responsive pleadings in any of the pending matters. The Court did not
record the rulings in either of the two minute orders issued on Oct.
27. Petitioners attorney confirmed the rulings were made in
correspondence to me the next day. The correspondence included a
demand based on the sua sponte rulings - that I drop all pending
matters or she would file responsive declarations requesting
sanctions in each of the four proceedings. Attached hereto as Exhibit
E is a true and correct copy of the Oct. 28, 2010 letter I received
from the attorney.
25. The attorney also memorialized excerpts of the Oct. 27 sua
sponte orders in four responsive declarations - each with a request
for sanctions - which she filed on October 29, 2010.
26. Despite confirming that the sua sponte rulings were issued
in both her Oct. 28 letter, and in the four Oct. 29 responsive
declarations, the attorney refused my request that the order after
hearing accurately memorialize the rulings. The sua sponte rulings
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8 RESPONSIVE DECLARATION OF S IN OPPOSITION TO PETITIONERS MARCH 28, 2012 MOTION
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were material and relevant in that, among other things, they
reflected judicial bias, prejudgment, advocacy, other violations of
the Code of Judicial Ethics, and likely constitutional-level error by
the Court. The attorneys refusal to memorialize in the trial court
record the sua sponte rulings conveyed the appearance that she was
acting in concert with the Court to conceal the rulings.
27. In January, 2011 the attorney notified me that Petitioner
intended to move what the attorney characterized as my personal
belongings from the marital residence to a storage unit. On Jan. 7,
2011 in writing I notified the attorney that I did not consent to the
property being moved. A true and correct copy of my letter is
attached hereto as Exhibit F. As reflected on the exhibit, the
attorney received a copy of this correspondence via facsimile
transmission on Jan. 7, 2011.
28. Attached hereto as Exhibits G, H, I, J, & K are true and
correct copies of a series of letters from February, March and April,
2011 reflecting my repeated objections to Petitioners unauthorized
transfer of property to a storage unit. As the letters reflect, it
was ultimately revealed that the property transferred to storage was
in fact not my personal belongings. The transferred property
consisted of what Petitioner unilaterally decided would be my share
of community property. The attorney received copies of my letters via
facsimile on the dates recorded on each of my letters.
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9 RESPONSIVE DECLARATION OF S IN OPPOSITION TO PETITIONERS MARCH 28, 2012 MOTION
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29. More recently, on February 8, 2012, I wrote to the attorney
to verify if Respondent was still refusing to provide me with copies
of the household financial records she controlled and which I require
to complete my declarations of disclosure. In the letter, I also
asked the attorney about other matters, including if she expected to
continue her policy of requesting sanctions in all responsive
pleadings. A true and correct copy of my letter is attached hereto as
Exhibit L. As reflected on the exhibit, the attorney received the
letter via facsimile on Feb. 8, 2012.
30. In a response dated Feb. 9, 2012, the attorney wrote that I
would have to make a formal discovery request for the financial
records, and that she would continue to request sanctions in
responsive pleadings when appropriate. She provided similar,
adversarial and non-cooperative responses to my other inquiries. A
true and correct copy of the attorneys letter is attached hereto as
Exhibit M.
31. In light of the attorneys past and recent uncooperative and
adversarial conduct set forth above, it is reasonable for me to
assume, and I do assume, that any request by me to have her correct
the defective March 28, 2012 motion would be futile.
32. This declaration and response to Petitioners March 28,
2012 motion was filed at the earliest practicable time. As I have
done with all past filings, I emailed this responsive pleading to
Petitioners attorney ahead of formal service by priority U.S. Mail
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- 2 - RESPONDENTS SUPPORTING MEMORANDUM IN OPPOSITION TO PETITIONERS MARCH 28, 2012
MOTION FOR SEVEN ORDERS
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a veteran family law attorney and judge pro tem. (Declaration of in
Opposition to Petitioners March 28, 2012 Motion for Seven Orders (
Dec.), 3, 4 and Exhs. A, B (filed herewith).)
Respondent is indigent and involuntarily pro per because Petitioner is the
managing spouse, controls all community assets and income, and refuses to
release community funds to enable Respondent to retain counsel. (See RJN #6 p.
11 29; RJN #1 p. 8 27; RJN #2 p. 1 1; RJN #7 Exh. L.) Petitioner also refuses
to provide Respondent with copies of household financial records she controls and
that he requires to complete his declarations of disclosure. (See, e.g.,
Dec. 29, 30 and Exhs. L, M.) The record reflects that, since before the case was
filed in May 2010, Petitioner has carried out a scheme to misappropriate
community assets and dispossess Respondent of his property and possessory
rights. (See, e.g., Dec. 27-30 and Exhs. F-M.)
In the present proceeding, Petitioner seeks harsh and significant evidentiary
and monetary sanctions, and other relief. Petitioner also effectively requests the
Courts ex post facto acquiescence to her January 2011 unilateral division and
transfer of community property - her third and fourth unpunished violations of the
automatic temporary restraining orders since the case began. (See RJN #1) On its
face, Petitioners pleading is void. It does not comply with state and local rules of
court and other procedural statutes. The errors are substantive, non-trivial, and
unreasonably obstruct Respondents ability to respond to the motion.
It also is reasonable to infer that the errors are deliberate. The court rule and
statute violations work to Petitioners advantage and disadvantage Respondent.
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- 3 - RESPONDENTS SUPPORTING MEMORANDUM IN OPPOSITION TO PETITIONERS MARCH 28, 2012
MOTION FOR SEVEN ORDERS
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The pleading was drafted by a veteran family law attorney and judge pro tem. ( .
Dec. 3, 4 and Exhs. A, B.) The attorney has made virtually identical
errors in all prior court filings. The errors are calculated to gain a litigation
advantage by, inter alia, precluding Respondents ability to rebut, impeach or
challenge inadmissible evidence under Code of Civil Procedure 436 and 431.10,
and Cal. Rules of Court Rule 3.1354(b)(2)(written objections must state line
number of material objected to).
As set forth below, the strategy sets a trap where Respondent cannot lawfully
make written evidentiary objections - and the objections are therefore waived, and
the inadmissible evidence admitted. By law, under Code of Civil Procedure
437c(b)(5) and 437c(d) objections not made are waived. (See also Weil & Brown,
Cal. Prac. Guide: Civ. Pro. Before Trial (TRG-2011) 10:210 [failure to make
evidentiary objections waives right to challenge ruling based on inadmissible
evidence].)
Taken together with Petitioners prior defective court submissions, the
motion constitutes repeated and deliberate violations of court rules and is
therefore sanctionable conduct under Code of Civil Procedure 583.150 and
575.1. For the reasons set forth herein, Respondent respectfully requests that the
motion be dismissed with prejudice, denied or stricken as a sanction for
Petitioners serial violations of court rules and statutory pleading requirements.
Alternatively, the motion should be dismissed, denied or stricken until it complies
with the law.
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- 4 - RESPONDENTS SUPPORTING MEMORANDUM IN OPPOSITION TO PETITIONERS MARCH 28, 2012
MOTION FOR SEVEN ORDERS
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II. PETITIONERS CURRENT AND PRIOR VIOLATIONS OF COURT RULES STATUTES, and DECISIONAL LAW
A. Violations of Court Rules and Family Code 2335
1. Court Rule and Family Code Violations in the Present Proceeding
Petitioners pending motion for seven orders relies in large part on her six-
page declaration. The declaration was filed without line numbers in the left margin
in violation of Cal. Rules of Court (CRC) Rule 2.108(4) , is single-spaced in violation
of CRC Rule 2.108(1) and does not contain a footer, violating Rule 2.110. The
violations constitute a violation of Local Rule 3.02 [failure to comply with CRC].
The two declarations included with Petitioners motion contain false,
immaterial, or irrelevant material facts, and omit important material facts. ( .
Dec., 5.) The false, immaterial, irrelevant and omitted material facts are
dispositive to the orders requested by Petitioner. (Id. 6.) Removal of the
improper, inadmissible material and inclusion of the omitted material will render
both declarations insufficient to support the relief requested in the motion. (Id.).
The declaration submitted by Petitioner also contains fabricated, or
otherwise inadmissible misconduct, or fault evidence. (Id., 7.) Subject to
statutorily proscribed exceptions, the use of fault evidence is prohibited by Family
Code 2335. The impropriety and consequences of attempting to use fault
evidence is emphasized throughout the leading family law treatise. (See Hogoboom
& King, Cal. Prac. Guide: Family Law (The Rutter Group 2011) 2:34, 3:239-40;
6:823; 13:90; 13:121; 14:265.1.) Any attempt to sneak in fault evidence in
violation of 2335 is likely to result in strong reprimand and may even draw
monetary sanctions (Fam. C. 271). (Id., at 13:122, emphasis in original). The
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- 5 - RESPONDENTS SUPPORTING MEMORANDUM IN OPPOSITION TO PETITIONERS MARCH 28, 2012
MOTION FOR SEVEN ORDERS
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fault evidence recited by Petitioner does not fall within the statutorily proscribed
exceptions, which arise in domestic violence, child custody and specified support
matters. Family Code 3011(b)&(d), 3041, 4320(i),(m), 4325 and 6300. (See also
Hogoboom & King, 6:823.1-824.6; 11:195).
If the Court does not strike the motion with prejudice, to effectively respond
to Petitioners motion, to preserve his rights of trial and appellate review, and to
provide the basis for a sanctions request based on the use of prohibited fault
evidence and other grounds, Respondent will concurrently file with his response
written evidentiary objections under Code of Civil Procedure 436 and 431.10.
Dec., 9, 12.) In addition to general and specific Family Code fault
evidence objections, Respondent will make written Evidence Code-based
objections. (Id.). Cal. Rules of Court, Rule 3.1354(b)(2) requires for each objection
reference to the line number of the objectionable material. (See also Weil & Brown,
Cal. Prac. Guide: Civ. Pro. Before Trial (TRG-2011) 9:102.5 [reference to page and
line number required for evidentiary objections].) It is self-evident that until
Petitioners declaration is drafted in compliance with CRC Rule 2.108(4),
Respondent cannot make lawful and effective evidentiary objections.
In responding to Petitioners motion, Respondent also cannot file a
supporting memorandum which complies with Cal. Rules of Court until
Petitioners declaration complies with Cal. Rules of Court Rule 2.108(4).
Respondents memorandum will reference specific portions of Petitioners
declaration. ( . Dec., 15.) Cal. Rules of Court Rule 3.1113(k) requires
such references to specify the paragraph or line number in the declaration.
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- 6 - RESPONDENTS SUPPORTING MEMORANDUM IN OPPOSITION TO PETITIONERS MARCH 28, 2012
MOTION FOR SEVEN ORDERS
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In addition, the points and authorities filed with Petitioners motion do not
comply with Cal. Rules of Court Rule 3.1113(b) [memorandum must contain
statement of facts and concise statement of the evidence relied on]. The
memorandum appears to misstate the record and to rely on false, misleading or
omitted material facts, and makes no specific, identifiable references to the record.
Respondent cannot effectively respond to, and rebut or impeach the references
referred to in Petitioners memorandum until it complies with Rule 3.113(b) .
Petitioners memorandum also violates Cal. Rules of Court Rule 3.113(k)
[reference to supporting declarations must reference page, paragraph and line
number]. The memorandum appears to reference Petitioners declaration and
exhibit, but does not provide the information required by Rule 3.1113(k).
2. Court Rule and Family Code Violations in Prior Proceedings
a. The Defective September 2010 Motion to Compel
On September 24, 2010 Petitioner filed a motion to compel which relied on a
declaration with the same defects and violations of Cal. Rules of Court and the
Family Code as the current declaration. (See RJN #3, Dec. of p. 1-2.)
The motion to compel requested attorney fee sanctions. Petitioner did not file
an income and expense declaration as required by CRC Rules 5.118(b) and
5.128(b), and Local Rule 14.11(9).1 (RJN #3.) The circumstances - including the
training, experience and related conduct by Petitioners attorney - logically infer
1 The only arguable exception to the mandatory income and expense declaration requirement is where the declaration is already on file with the court from prior proceedings. See Burkle v. Burkle (2006) 144 Cal.App.4th 387; Marriage of Corona (2009) 172 Cal.App.4th 1205, 1227 [failure to file income and expense declaration excused where court had several years of income and expense declarations
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- 7 - RESPONDENTS SUPPORTING MEMORANDUM IN OPPOSITION TO PETITIONERS MARCH 28, 2012
MOTION FOR SEVEN ORDERS
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that the income and expense declaration omission was deliberate and calculated to
gain a litigation advantage by, inter alia, concealing from the Court the stark
economic disparity between the parties.
b. The October 2010 Defective Responsive Declaration
On October 14, 2010 Petitioner filed a responsive declaration with the same defects
and violations of court rules and the Family Code as the current declaration. (RJN
#4 Dec. of pp. 1-5.) The Family Code 2335 fault evidence
violations were particularly egregious in the Oct. 14 responsive declaration, and
Respondent attempted written evidentiary objections to the declaration. (RJN #5.)
The Court failed or refused to rule on the objections.
Taken together with Petitioners declaration in the current matter, where,
among other improbable claims, Petitioner claims to have discovered items which
are used to create explosivesamong Respondents personal property, the
content of the declarations show by Petitioner an unusual preoccupation with
bringing misconduct evidence before the court. The preoccupation should call
Petitioners credibility into question. (See, generally, Hogoboom & King, Cal. Prac.
Guide: Family Law (TRG 2011) 7:296.15 and 7:493 [in child custody context,
court may question credibility of party with general recalcitrance and
preoccupation to submit irrelevant fault evidence].)
B. Violations of Decisional Law
1. The Present Proceedings
prior to hearing at issue]. Until the present proceeding, Petitioner did not have an income and expense declaration on file with the court.
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- 8 - RESPONDENTS SUPPORTING MEMORANDUM IN OPPOSITION TO PETITIONERS MARCH 28, 2012
MOTION FOR SEVEN ORDERS
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Petitioners motion includes a request for $7,290 in attorney fee sanctions
and costs. The attorney fees accounting submitted by Petitioners trial court
attorney is unsworn. An unsworn attorney fee request is invalid. In re Marriage of
Duris and Urbany (2011) 193 Cal.App.4th 510, 515; In re Zeth S. (2003) 31 Cal.4th
396, 413-414, fn. 11. [It is axiomatic that the unsworn statements of counsel are
not evidence].
2. Prior Proceedings
a. The September 2010 Defective Motion to Compel
On September 24, 2010 Petitioner filed a motion to compel which included a
request for attorney fee sanctions which was unsworn (RJN #3.), and did not
include an income and expense declaration.
b. The Four October 2010 Defective Responsive Declarations
On Oct. 29, 2010 Petitioner filed four responsive declarations. Each
declaration requested attorney fee sanctions. None of the declarations included an
accounting of the attorney fees requested. None of the declarations included a
sworn accounting of the attorney fees requested (RJN #9, 10, 11, 12.), nor an
income and expense declaration.
III. PETITIONERS REPEATED AND DELIBERATE VIOLATIONS OF COURT RULES, STATUTES AND DECISIONAL LAW WARRANT SANCTIONS OR
OTHER RELIEF
Petitioners violation of court rules and statutory law are significant, relevant
and not trivial. Petitioners history of consistent, repeated violations strongly infers
that the violations are deliberate and calculated to gain a litigation advantage. The
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- 9 - RESPONDENTS SUPPORTING MEMORANDUM IN OPPOSITION TO PETITIONERS MARCH 28, 2012
MOTION FOR SEVEN ORDERS
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natural and expected consequence of the violations includes impeding and
obstructing Respondents due process and appeal rights.
Code of Civil Procedure, section 583.150 permits the court to dismiss an
action or impose other sanctions under local rules adopted by the court pursuant
to Section 575.1 or by the Judicial Council pursuant to statute, or otherwise under
the inherent authority of the court. Code of Civil Procedure, section 575.1 provides
for the presiding judge of each superior court to promulgate local rules designed to
expedite and facilitate the business of the court. Sacramento County Superior
Court Local Rule 3.02 states:
Failure to comply with any Local Rule or California Rules of Court may subject the party to sanctions pursuant to California Rules of Court, rule 2.30; Code of Civil Procedure sections 177.5, 575.2.
Petitioners clear violations of Cal. Rules of Court violate Local Rule 3.02. Rule 3.02
and Code of Civil Procedure 575.2 authorize the court to strike out all or part of
any pleading, or dismiss an action or proceeding or any part thereof for non-
compliance with local rules. CCP 583.150 permits a court to dismiss an action or
impose other sanctions for local and state court rule violations under the inherent
power of the court. CCP 436(b) permits a court to - at any time in its discretion
and upon terms it deems proper strike all or any part of any pleading not drawn
or filed in conformity with the laws of the state or a court rule. (See Weil & Brown,
Cal. Prac. Guide: Civ. Pro. Before Trial (TRG-2011) 9:1275-1282; 11:280.7a-
11:280.10a.) Violation or disregard of local rules is ground by itself for denial of a
motion. (Id. 9.9.1.)