75 Cal.App.5th 619
Cal. Ct. App.2022Background
- Jennifer and Mark Shenefield share one child; earlier dissolution proceedings produced a confidential Evidence Code §730 psychological custody evaluation concerning Jennifer.
- In August 2018 Mark filed a Request for Order (RFO) seeking joint custody and attached a declaration that quoted extensively from the prior confidential evaluation; Karolyn Kovtun was Mark’s attorney and filed the papers.
- Jennifer opposed the RFO and sought sanctions under Family Code §§3111 and 3025.5 for unwarranted disclosure of the confidential evaluation; she also attached a transcript of a September 28, 2017 meeting between Jennifer, Mark, and Kovtun.
- At trial the court found Mark’s disclosure unwarranted and sanctioned Mark $10,000 and sanctioned Kovtun $15,000; a separate court denied Kovtun’s motion to vacate the sanctions.
- Kovtun appealed, arguing (among other things) that §3111 cannot reach attorneys, she lacked due process/personal jurisdiction, CCP §128.7 safe-harbor applied, and the recording transcript was inadmissible. The Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument (Jennifer) | Defendant's Argument (Kovtun) | Held |
|---|---|---|---|
| Applicability of Fam. Code §3111 to attorneys | §3111 authorizes sanctions against the disclosing party and was meant to deter disclosure of confidential custody reports; applies to anyone who discloses, including counsel | §3111 applies only to named parties; attorneys are excluded by rule definitions and statute language | §3111 may be applied to attorneys; the statute targets the disclosing person and legislative history and rules of court support inclusion of counsel |
| Notice / due process and procedural form (Rule 5.14 / FL-300) | Notice was provided by Jennifer’s response, the court’s bifurcation order, trial readiness conference, and trial brief identifying sanctions | Jennifer should have filed a separate RFO / FL-300 or complied with Rule 5.14; procedural safe-harbor required | Rule 5.14 was inapplicable to statutory §3111 sanctions; actual notice and opportunity to be heard satisfied due process |
| Personal jurisdiction over attorney | N/A (Jennifer sought sanctions against disclosing party and counsel) | Court lacked personal jurisdiction over Kovtun because she was not personally served with a sanctions motion | Court had authority over counsel as an officer of the court and statutory sanctions under §3111 support imposing sanctions on counsel |
| Applicability of CCP §128.7 safe harbor | Statutory §3111 governs disclosures of confidential custody reports and does not require CCP §128.7’s safe-harbor | Sanctions could only be imposed via CCP §128.7 procedures (safe-harbor notice) | CCP §128.7 safe-harbor does not apply; §3111 serves a different legislative purpose (preventing disclosure) and a retraction period would not avoid the harm of disclosure |
| Admissibility of recorded September 28, 2017 meeting transcript | Transcript admissible; recording falls within exceptions (restraining/protective order allowed recording); probative of counsel’s knowledge/intent | Recording violated Penal Code §632 (confidential communication) and litigation privilege; transcript should not be considered | Admission not an abuse of discretion: recording was not objectively confidential given restraining/protective orders allowing recording; litigation-privilege argument forfeited and transcript was not essential to sanction outcome |
Key Cases Cited
- Goodman v. Lozano, 47 Cal.4th 1327 (statutory interpretation reviewed de novo)
- In re Marriage of Anka & Yeager, 31 Cal.App.5th 1115 (attorney-sanctions under §3111 upheld in related context)
- Bauguess v. Paine, 22 Cal.3d 626 (discussing court authority over counsel and limits on supervisory fee awards)
- Flanagan v. Flanagan, 27 Cal.4th 766 (objective test for expectation of privacy in recordings)
- In re Marriage of Feldman, 153 Cal.App.4th 1470 (review standards for sanctions and statutory interpretation)
- Barnes v. Department of Corrections, 74 Cal.App.4th 126 (explaining CCP §128.7 safe-harbor purpose and strict notice)
- Durdines v. Superior Court, 76 Cal.App.4th 247 (attorney as officer of the court subject to court control)
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (abuse of discretion standard for evidentiary rulings)