Opinion
G043246
12-19-2011
In re Marriage of STEPHANIE QUISENG SINGER and WAYNE SINGER. STEPHANIE QUISENG SINGER, Appellant, v. WAYNE SINGER, Respondent.
Law Offices of Michael R. Carver, Michael R. Carver; and Stephanie Quiseng Singer, in pro. per., for Appellant. Law Offices of Des Jardins & Haapala, Robert P. Des Jardins, Michael J. Haapala; Law Offices of William J. Kopeny and William J. Kopeny for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 08D009944)
OPINION
Appeal from two orders and a judgment of the Superior Court of Orange County, Nancy A. Pollard and Michael J. Naughton, Judges. Appeal from order striking petition treated as petition for writ of mandate. Petition granted. Other order and judgment reversed and remanded with directions.
Law Offices of Michael R. Carver, Michael R. Carver; and Stephanie Quiseng Singer, in pro. per., for Appellant.
Law Offices of Des Jardins & Haapala, Robert P. Des Jardins, Michael J. Haapala; Law Offices of William J. Kopeny and William J. Kopeny for Respondent.
We reverse a family law judgment and subsequent order denying a request to set aside that judgment. The judgment was made in the wake of a terminating discovery sanction obtained by husband Wayne Singer (Wayne) against wife Stephanie Quiseng Singer (Stephanie). It was significantly more punitive than necessary. The sanction was assessed for what, under the circumstances of this case, amounted to a first offense in failing to prepare a preliminary declaration of disclosure. (See Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613 [a "sanction order cannot go further than is necessary to accomplish the purpose of discovery"].) In the manner of family law cases the parties will be referred to by their first names. No disrespect is intended. All undesignated statutory references in this opinion will be to the Family Code.
FACTS
Stephanie filed a petition for dissolution of marriage in late October 2008. California law requires divorcing spouses to exchange preliminary declarations of disclosure, but is indefinite as to precisely when. The exchange merely must be at some point in time during the pendency of the action. (§§ 2100, subd. (c); 2103; 2104, subd. (a); Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2011) ¶11:67.1, p. 11-16 (hereinafter "Rutter Family Law Treatise") ["Normally, each party's preliminary declaration may be served any time during pendency of the action . . . ."].) Such declarations require the identification of all assets and liabilities in which the declarant "has or may have an interest and all liabilities for which the declarant is or may be liable," regardless of the community or separate character of those assets or liabilities. (§ 2104, subd. (c)(1).) They are mandatory. (§ 2104, subd. (a); Rutter Family Law Treatise, supra, ¶ 11:66, p. 11-15.)
At a trial setting conference held in June 16, 2009, Wayne obtained an order requiring Stephanie to provide a preliminary declaration of disclosure within 20 days. The order was in anticipation of a mandatory settlement conference being set for August 6, 2009. Stephanie failed to prepare the required declaration of disclosure. She also did not show up for the mandatory settlement conference on August 6.
At the August 6 hearing, Judge Pollard told Wayne's attorney that she couldn't "do the trial" without Stephanie's "P.D.O.D." Sua sponte, the judge invited Wayne's attorney to do a "2107 motion" that would "strike [Stephanie's] petition" so Wayne could proceed by way of default.
Six days later Wayne filed a motion to compel Stephanie to prepare and produce a preliminary declaration of disclosure and for reasonable sanctions up to and including "terminating sanctions." The hearing was set for September 18, 2009.
On September 18, 2009, Judge Pollard granted terminating sanctions, ordering Stephanie's original petition stricken. The order also declared that "husband can proceed by way of default." On October 5, 2009, Stephanie, now in "pro per," filed a "response" to what had been Wayne's response to her original petition. That same day Stephanie also served a "completed preliminary declaration of disclosure" on Wayne's attorney.
Wayne countered by filing, on October 27, 2009, three requests: He wanted Stephanie's "response" stricken. He wanted default entered against Stephanie. And he sought to schedule a prove-up hearing on the default. The trial court granted Wayne's requests ex parte. The court struck Stephanie's "response" of October 5. It entered default against Stephanie. And it scheduled a prove-up hearing for December 10, 2009.
Stephanie found counsel. On December 4, six days before the prove-up hearing, she filed a motion to set aside the orders of October 27. Her basic argument was that she was in emotional turmoil during the relevant period of time (summer of 2010), compounded by Wayne's giving her the false hope of a reconciliation. The motion was scheduled in the normal course for January 15, 2001, roughly 35 days after the prove-up hearing. Stephanie requested a continuance of the prove-up hearing still scheduled for December 10, but Judge Pollard denied the request. The denial led to the anomaly that by the time the court could hear the issue of whether a prove-up hearing should have been scheduled at all, the prove-up hearing would have already taken place.
A prove-up hearing took place on December 10, presided over by Judge Naughton. While Stephanie appeared at the prove-up hearing in propria persona, she was told she had no "pleading" and therefore "no standing." The judgment provided, among other things: Wayne's waiver of any claim for child support from Stephanie (Wayne receiving sole custody of the couple's 17-year old son), award of Wayne's law practice to Wayne at a value of $1,024,000, award of a 2008 (then one-year old) Porsche to Stephanie at a value of $90,000, award of a diamond necklace to Stephanie at a value of $5,000, an equalizing payment from Wayne to Stephanie of $80,175, and spousal support of $10,000 a month for 10 years, afterwards to drop down to a "jurisdictional" level.
At the hearing on January 15, 2010 to consider Stephanie's set aside motion, Judge Pollard noted Stephanie's refusal to "cooperate" and "follow" court orders. She said that "[e]ach time that happens" Wayne incurs attorney fees. The motion was denied.
The notice of appeal, filed February 5, 2010, identifies three orders being challenged: The September 18, 2009 order granting terminating sanctions, the December 10, 2009 judgment, and the January 15, 2010 order denying Stephanie's set aside motion. The notice of appeal is obviously timely as to the December 10, 2009 judgment and the January 15, 2010 postjudgment order denying the set aside motion.
The September 18, 2009 terminating sanctions order is a nonappealable order. (See State ex rel. Dept. of Pesticide Regulation v. Pet Food Express (2008) 165 Cal.App.4th 841, 852 [noting that "discovery orders in civil litigation . . . are not considered final, appealable orders"].) However, consideration of the judgment and the subsequent order denying the set aside motion require examination of the merits of the discovery order. Moreover, we have discretion to treat this appeal as a petition for writ of mandate challenging the September 18 order. (See Angell v. Superior Court (1999) 73 Cal.App.4th 691, 698.) Following Black Diamond Asphalt, Inc. v. Superior Court (2003) 114 Cal.App.4th 109, 114, we therefore dismiss the appeal insofar as it is taken from the September 18, 2009 order, but exercise our discretion to treat that appeal as a petition for writ of mandate seeking vacation of the September 18 order.
DISCUSSION
Judge Pollard correctly ascertained section 2107 governs the failure to comply with the need to prepare a preliminary declaration of disclosure. She incorrectly concluded, under the circumstances of this case, that she could ignore the possibility of lesser sanctions and go immediately to a terminating sanction. The trial judge also likewise ignored, when she considered the motion to set aside the default and default judgment, the possibility of conditioning any set aside "upon any terms as may be just" (see Code Civ. Proc. § 473, subd. (b)), including requiring Stephanie to pay for any unnecessary legal expense incurred by Wayne.
We examine the structure of section 2107 as it bears on the initial decision to grant terminating sanctions in a discovery matter. First, subdivision (a) provides that the "complying party may, within a reasonable time," simply "request" preparation of the declaration. Second, subdivision (b) provides that if the "noncomplying party" fails to honor that request, the complying party "may" seek "one or more" of three enumerated orders: (1) an order requiring "a further response"; (2) an order for an evidentiary sanction; or (3) an order granting the complying party's "voluntary waiver of receipt" of the noncomplying party's declaration. Third, subdivision (c) provides for additional sanctions for noncompliance with "any provision of this chapter," which can include the usual array of discovery sanctions available in civil, nonfamily law cases.
Subdivision (c) bears quotation in full: "If a party fails to comply with any provision of this chapter, the court shall, in addition to any other remedy provided by law, impose money sanctions against the noncomplying party. Sanctions shall be in an amount sufficient to deter repetition of the conduct or comparable conduct, and shall include reasonable attorney's fees, costs incurred, or both, unless the court finds that the noncomplying party acted with substantial justification or that other circumstances make the imposition of the sanction unjust."
Here, Judge Pollard incorrectly assumed that a preliminary declaration of disclosure from Stephanie was absolutely necessary to complete the case. It was not. As subdivision (b) shows, Wayne simply could have waived the need for a further response, with a monetary sanction to make Stephanie pay for Wayne's expense in obtaining that order.
Moreover, as both Wayne's trial brief and the subsequent default prove-up demonstrate, Wayne was in obvious possession of the records bearing on the identification of the marital assets. He thus would not have suffered any prejudice from an order forcing Stephanie to proceed on Wayne's declaration of disclosure. Beyond that, Wayne could merely have sought, as is contemplated by section 2107, subdivision (b)(2), simple evidentiary sanctions against Stephanie (e.g., not allowing her to contest Wayne's list of assets), again, with a monetary compensation for his trouble.
Discovery sanctions cannot confer windfalls on parties by putting them in a better position than they would be had the sought-after discovery been produced. (See Rutter Family Law, supra, ¶ 11:420, p. 11-104.) As the Rutter Family Law Treatise says, "Any sanction imposed under the Discovery Act for 'discovery misuse' cannot go further than is necessary to accomplish the purpose of the discovery sought; if instead, the sanction is assessed as a penalty to 'punish' the offending party, for the omission, it is reversible as an abuse of discretion and a violation of due process." (Id. at ¶11:420, p. 11-104, original italics.)
This is a large asset divorce, involving the valuation of a professional practice with sufficient income that it warranted an initial stipulation for $25,000 a month in temporary spousal support. Reasonable minds may differ on the precise valuation of Wayne's law practice. Beyond that, Stephanie questioned the high value of $90,000 on her used Porsche, plus the imputation of a $5,000 necklace to her. That is, Stephanie's moving papers certainly showed prejudice from the judgment ensuing from the default prove-up. Wayne was left in a much better position than he would have been if some lesser sanction had been imposed.
Stephanie, however, cannot escape all consequence from her delay, even if occasioned by emotional turmoil. Section 2107 subdivision (c) allowed the trial court to grant lesser, monetary sanctions, for the delay and expense incurred by Wayne prompting Stephanie to belatedly file her preliminary declaration of disclosure. Likewise, in considering the motion to set aside the default and default judgment, the trial court had the power to condition the set aside "upon any terms as may be just." (Code Civ. Proc., § 473, subd. (b).)
We summarize our conclusions:
(1) Treating the appeal as a petition for writ challenging the September 18, 2009 discovery order, we grant the petition and direct the trial court to vacate the September 18, 2009 order. The caption of this opinion reflects the correct alignment of the parties. At the trial level Stephanie is the petitioner. Wayne is the respondent.
(2) We reverse the December 10, 2009 judgment.
(3) We reverse the January 15, 2010 order denying Stephanie's set aside motion, but remand the matter to the trial court to determine the proper amount of attorney fees, costs, and expenses incurred by Wayne that should be assessed against Stephanie for her delay. Stephanie will be able to decide for herself whether the probability of obtaining a better judgment after payment of the appropriate monetary sanctions is worth the cost of those sanctions. If Stephanie decides not to pay the assessment, the trial court will have authority to reinstate the vacated judgment of December 10, 2010.
Finally, while Stephanie has the right to proceed in propria persona, we strongly advise her to obtain counsel for future proceedings. We will be charitable and simply say that her performance at oral argument in this court did not inspire confidence in her ability to represent herself.
The parties shall bear their own costs in this appeal.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
O'LEARY, J.