In Re Mark B.
”
For reasons that follow, in the published portion of the opinion, we answer the first two questions, “Yes.” In the unpublished portion of the opinion, we conclude the sanctions imposed in this case were justified.
In appeal No. C049885, Leslie B., the mother of minors Mark B., Jr., Etijah G., Angelique G., and Caryssa C, sought review of the juvenile court‘s findings and orders as to the minors; in addition, Leslie B.‘s attorney, Julie Lynn Wolff, sought review of the court‘s order sanctioning Wolff pursuant to section 128.7. In appeal No. C050371, Wolff additionally sought review of the court‘s further order awarding attorney‘s fees to opposing counsel on the sanctions motion. We consolidated the appeals on our own motion. Thereafter, we dismissed the appeal in case No. C049885 for mootness as to the minors but not as to Wolff. This leaves attorney Wolff‘s appeals from the sanctions orders.
We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The motion for which attorney Wolff was sanctioned attacked the Sacramento County juvenile court‘s contract system for appointing dependency conflict counsel. Under that system, established in 1999 and subsequently amended, attorney Dale S. Wilson (real party in interest and respondent on appeal) undertook to create entities to represent indigent adults, then to supervise the entities administratively while maintaining a “glass wall” between them and his own practice, as well as between the entities themselves. Wolff‘s motion asserted the entities were Wilson‘s alter egos and all counsel appointed in the case had conflicts of interest. Wilson, not an attorney of record in these proceedings, sought and obtained leave from the juvenile court to oppose the motion,
The juvenile court‘s appointment system
The Sacramento County juvenile court appoints counsel for indigent adults in dependency proceedings under a standing order. The order in effect at the time of these proceedings provides in part:
“Appointment of Counsel for Mothers and Presumed Fathers
“Pursuant to [Welf. & Inst.Code] section 317[, subdivision] (c)3 and [Cal. Rules of Court] rule 1438(a)(2)(B), [now rule 5.660] the Court has entered into a contract with the Law Office of Dale Wilson, a qualified provider, for the representation of parents in dependency matters, to be compensated on an annual basis for all appearances by that party during the fiscal year. That office is automatically appointed to represent each mother and presumed father of a child who is the subject of a section 300 or 342 dependency petition....
“[¶] ... [¶]
“The Law Office of Dale Wilson shall organize itself into separate divisions under its administrative supervision and/or contract with other conflict-counsel as are necessary to accept the automatic appointments to represent parents in dependency proceedings. A `glass wall\’ protocol, consistent with the requirements of People v. Christian (1996) 41 Cal.App.4th 986[, 48 Cal.Rptr.2d 867], shall be maintained to prevent the sharing of any confidential or privileged information by members of any division of the Law Office of Dale Wilson with members of the other divisions or with other conflict-counsel. Such divisions shall include, but are not limited to, the Parent Advocates of Sacramento (PAS), Dependency Associates of Sacramento (DAS) and Sacramento County Juvenile Defenders (SCJD).
“Upon such automatic appointment of the Law Office of Dale Wilson to represent parents in a dependency case, it shall examine the circumstances of the case and determine whether a legal conflict of interest exists that would prevent a single lawyer from that office from representing all of the parents named in the petition. Upon the determination of such a conflict, the Law Office of Dale Wilson shall assign the representation of the parents for whom a conflict of interest would exist to separate divisions of its office or other conflict-counsel under its administrative supervision, to the extent required by the contract with the Court.”
The amended contract operative at the time of these proceedings provides that the Law Offices of Dale S. Wilson, a firm which represents indigent parties in dependency proceedings, is authorized to provide legal representation for up to four indigent parents, subcontracting as necessary,
To implement the original contract, which provided for two levels of conflict representation, Wilson created PAS and DAS. When the contract was amended to add two more levels of representation, Wilson began to use independent contract attorneys for the third and fourth adults rather than create additional entities.4
Appointment of counsel in these proceedings
DAS was appointed to represent the father of minor Mark B., Jr. An attorney from SCJD was appointed to represent the father of minor Caryssa C. A different attorney from SCJD was appointed to represent another biological father in the case, after the Law Office of Dale S. Wilson received the original appointment. Leslie B., the mother, was initially represented by PAS.
Wolff‘s appearance and filings
After the initial jurisdictional and dispositional hearing, appellant Julie Lynn Wolff substituted in as. Leslie B.‘s retained counsel on July 20, 2004. Almost immediately thereafter, Wolff filed a “Motion to Dismiss Attorneys for Actual, or Apparent, Undisclosed Conflict of Interest” (the conflict motion). She filed a “Supplement” to the motion on September 1, 2004, shortly before it was scheduled to be heard.
The conflict motion
The conflict motion, which does not attach any supporting evidence, asserts: “The Law Offices of Dale Wilson are appointed to represent the adults in a dependency case. Despite any claim of PAS/ DAS, or other appointments, all appointments are through the Law Offices of Dale Wilson, with attorneys sometimes identifying themselves as PAS or DAS (not legally recognized entities in California according to the undersigned‘s research into the matter), and other times as `The Law Offices of Dale Wilson.\’ It is Dale Wilson who is expected to pay for transcripts for either PAS or DAS, ... on whose behalf objections are made, and who, per the Court‘s statements, is required by the Presiding Judge to make all appointments for court ordered attorneys for adults in Sacramento County juvenile dependency cases.... Mr. Wilson, one way or the other, is in charge of all the appointments of attorneys in dependency cases. This was never disclosed to mother. No waiver was ever requested, no oral or written disclosures made by counsel, no waiver ever given.” This arrangement violates
The “supplement”
Wolffs hundred-page “supplement” purports to provide evidence and argument to support the motion‘s allegations.
Evidence
The supplement sets out the court‘s standing order as part of Wolffs supporting declaration. As exhibits, it attaches:
Argument
The “Supplement” asserts among other things:
Wilson is compensated for all appointed attorneys, regardless of their labels. They are under his supervision and control and he is expressly responsible for their performance.
An “amendment” to Wilson‘s contract dated July 1, 2001, which states that it supersedes prior agreements and newly authorizes Wilson to represent the third and fourth parents in juvenile proceedings, gives Wilson until August 25, 2001, “to comply with ethical standards by instituting a `glass wall.\‘” This language shows that Wilson had not yet done so.5
Attorneys working for Wilson are required to violate their clients’ confidences insofar as they also represent the clients in drug court under the contract.
The contract does not require Wilson to disclose his representation of multiple parties, to reveal conflicts to clients, or to obtain waivers from them.
The Law Office of Dale Wilson is not a California corporation and the entities PAS, DAS, and SCJD have no fictitious business names on file. These entities are really one, and Wilson is “the sole legal entity behind all those labels[.]”
Wilson has one office at 2100 21st Street, Sacramento, where all attorneys for PAS and DAS work. There is only one entrance to Wilson‘s office for all his clients, whether private or court-appointed.
Wilson‘s Yellow Pages advertisements claim his office has handled over 25,000 cases. A number so great must include the cases nominally handled by the entities.
In the present case, the appointed attorneys, including Leslie B.‘s original counsel, have provided ineffective assistance and revealed actual conflicts of interest in numerous ways. In one instance, DAS attorney Jessica Taphorn had possession of Leslie B.‘s drug court file, tried to interview her, and was scheduled to represent her in drug court before Wolff, who had
Witness list
Leslie B. “anticipates” calling among others: Wilson; all attorneys appointed in Sacramento County juvenile dependency proceedings since the inception of Wilson‘s contract, including six named attorneys with PAS, five with DAS, and five with SCJD; the juvenile court‘s presiding judge; all juvenile court referees; all juvenile dependency court reporters; and all other adult parties in this case.7
Wilson‘s opposition and notice of intent to seek sanctions
After obtaining the court‘s permission to oppose the motion, Wilson retained counsel and filed opposition. He also gave notice of intent to seek sanctions against Wolff.
The opposition
The opposition, supported by declarations from Wilson, P.&S managing attorney John Passalacqua, DAS managing attorney Stephen Nelson, and DAS attorney Jessica Taphorn, asserts:
Wilson has created the “glass wall” required by People v. Christian (1996) 41 Cal.App.4th 986, 48 Cal.Rptr.2d 867 (Christian).8 Each entity has a separate office, telephone number, letterhead, pleading paper, business cards, confidential files, support staff, computers, and printers. The managers of Wilson‘s office and the entities supervise only their own staffs. All staff are trained to recognize the entities’ separateness and to treat other entities as opposing counsel with respect to client confidentiality.
All files for clients assigned to independent contract attorneys are maintained by those attorneys, not by Wilson‘s office, PAS, or DAS. No one from Wilson‘s office has access to such files or knows any confidential information about those clients. Wilson does not supervise, hire, or fire such attorneys or their staff. PAS and DAS treat those attorneys as opposing counsel.
Wilson is the administrative director of PAS and DAS and the managing attorney of his own firm. His contract requires him to report to the juvenile court on the case-load of PAS, DAS, and independent contract
Leslie B. had argued that Christian, supra, 41 Cal.App.4th 986, 48 Cal.Rptr.2d 867, was inapposite because a public agency, not a private attorney, created the separate units and firms described there. However, the decision does not make that distinction. Moreover, as in Christian, a public agency (the county) funds all attorneys appointed under Wilson‘s contract. Wilson may not represent any party in a case in which he has referred another party to PAS, DAS, or an independent contractor, regardless of how he would be paid.
Wilson‘s contract also requires him to provide an attorney to attend dependency drug court, which operates a treatment and recovery program known as STARS. Non-confidential STARS reports are sent to PAS or DAS; all such reports for non-PAS and non-DAS clients are placed in a file folder and taken to drug court for the attorney representing the STARS client. DAS attorney Jessica Taphorn was assigned to drug court on August 4, 2004. DAS managing attorney Stephen Nelson instructed her to give Leslie B.‘s STARS reports to her attorney, Wolff. Taphorn did so. At no time did Taphorn or other
DAS attorneys have Leslie B.‘s PAS dependency file.
Notice of intent to seek sanctions
Along with Wilson‘s opposition, he requested a continuance of the hearing on the motion to “allow [the] Court to consider sanctions against Julie Lynn Wolff under [ ] section 128.7.” Wilson‘s retained counsel, Charles Post, declared as relevant that he had written to Wolff on December 24, 2004, advising her he would seek sanctions if she did not withdraw the motion, and Wolff had refused to do so.
The sanctions motion
On January 11, 2005, Wilson served a motion for sanctions against Wolff under section 128.7, citing all grounds specified in the statute. The motion was filed on February 2, 2005. Wilson asserted that juvenile courts can order section 128.7 sanctions, but did not cite any authority on point.
The court‘s ruling on the conflict motion
On March 29, 2005, juvenile court referee Carol Chrisman issued a written order denying the conflict motion.
On the merits, Referee Chrisman found: (1) It did not per se violate the “glass wall” principle for a private law office, rather than a government agency or a nonprofit entity, to be the contractor in a conflict counsel arrangement. (2) The Wilson Law Offices had set up the required “glass wall.” (3) Leslie B. had failed to show any breach of the “glass wall” or any actual conflict of interest as to any appointed counsel in this case.
Referee Chrisman also found: Although Wolff had indicated “there were a plethora of witnesses with relevant testimony, should the matter advance to trial,” she
The court‘s orders on the sanctions motion
On March 9, 2005, after argument on the sanctions motion, Referee Chrisman requested supplemental briefing on the juvenile court‘s authority to order section 128.7 sanctions. Only Wilson responded.
On April 20, 2005, Referee Chrisman granted the motion and ordered sanctions in the amount of $1,000 payable to the court, plus reasonable attorney‘s fees and expenses to Wilson as per proof. We set out her key findings in part III of the Discussion, post.
On June 3, 2005, after reviewing Wilson‘s documentation of his fees and expenses, Referee Chrisman ordered Wolff to pay the sum of $5,989.50 as attorney‘s fees to the Law Offices of Dale Wilson.9 The order notes that Wolff did not file an objection or any other response to Wilson‘s claimed fees and expenses.
DISCUSSION
I
The first issue is whether the juvenile court in dependency proceedings may impose sanctions under section 128.7. We conclude it may.
Section 128.7 provides in part (italics added):
“(b) By presenting to the court ... a pleading, petition, written notice of motion, or other similar paper, an attorney ... is certifying that to the best of [his] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:
“(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
“(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.
“(3) The allegations and other factual contentions have evidentiary support or ... are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
“[¶] ... [¶]
“(c) If ... the court determines that subdivision (b) has been violated, the court may ... impose an appropriate sanction upon the attorneys ... that have violated subdivision (b)....
“(1).... Notice of motion shall be served as provided in
Section 1010 , but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as thecourt may prescribe, the challenged paper ... is not withdrawn or appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney‘s fees incurred in presenting or opposing the motion.... “(2) On its own motion, the court may enter an order describing the specific conduct that appears to violate subdivision (b)....
“[¶] ... [¶]
“(e) When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed.
“(f) In addition to any award pursuant to this section for conduct described in subdivision (b), the court may impose punitive damages against the plaintiff....
“[¶] ... [¶]
“(h) A motion for sanctions brought ... primarily for an improper purpose ... shall itself be subject to a motion for sanctions. It is the intent of the Legislature that courts shall vigorously use its [sic ] sanctions authority to deter that improper conduct or comparable conduct by others similarly situated.
“(i) This section shall apply to a complaint or petition filed on or after January 1, 1995, and any other pleading, written notice of motion, or other similar paper filed in that matter.” (See fn. 1, ante.)
In construing statutes, we look first to their plain language. (People v. Statum (2002) 28 Cal.4th 682, 689, 122 Cal.Rptr.2d 572, 50 P.3d 355.) Section 128.7 repeatedly speaks of “the court” or “courts” without restriction. It cites the full range of pleadings that may be filed in civil court, whether in an action or a special proceeding. (Cf.
Furthermore, the internal organization of a code may aid in understanding a statute‘s purpose (Medical Board v. Superior Court. (2003) 111 Cal.App.4th 163, 175, 4 Cal.Rptr.3d 403), and chapter and section headings in the codes may be considered in determining legislative intent. (People v. Superior Court (Laff) (2001) 25 Cal.4th 703, 727, 107 Cal.Rptr.2d 323, 23 P.3d 563; People v. Hull (1991) 1 Cal.4th 266, 272, 2 Cal.Rptr.2d 526, 820 P.2d 1036.) Following its introductory provisions, the Code of Civil Procedure has four parts: Part 1, “Of Courts of Justice” (
In addition, because section 128.7 is modeled on Rule 11 of the Federal Rules of Civil Procedure, we may look to the federal courts’ interpretation of that rule. (Eichenbaum v. Alon (2003) 106 Cal. App.4th 967, 975, fn. 6, 131 Cal.Rptr.2d 296.) They have held that Rule 11 applies to all types of civil courts and proceedings,
Finally, the policy underlying section 128.7 favors its use in dependency proceedings. The statute enables courts to deter or punish frivolous filings which disrupt matters, waste time, and burden courts’ and parties’ resources. Such evils are especially pernicious in dependency proceedings, which should be conducted as informally and nonadversarially as possible to protect the minors’ interests. (
The contrary arguments of Wolff and amicus County Counsel are unpersuasive.
Wolff and County Counsel note that “[a] superior court convened as and exercising the special powers of a juvenile court is vested with jurisdiction to make only those limited determinations authorized by the legislative grant of those special powers. [Citations.]” (In re Lisa R. (1975) 13 Cal.3d 636, 643, 119 Cal.Rptr. 475, 532 P.2d 123; accord, People v. Nguyen (1990) 222 Cal.App.3d 1612, 1619, 272 Cal.Rptr. 523; In re Jody R. (1990) 218 Cal.App.3d 1615, 1622-1623, 267 Cal.Rptr. 746.) They then assert that the “determination” to impose sanctions is not within this legislative grant of power because sections 300 through 395, the enabling legislation for dependency proceedings, do not expressly incorporate section 128.7 or any other sanctions provision.11 Even if a sanctions order is a “determination” as the cited cases use that term, the conclusion drawn by Wolff and County Counsel does not follow.
“Notwithstanding the absence of specific authorization to make particular determinations, a juvenile court is nevertheless vested with the authority to make such determinations which [sic] are incidentally necessary to the performance of
In a related argument, Wolff and County Counsel contend that section 128.7 sanctions are outside the juvenile court‘s power because that court is governed by its own rules and statutes, to which the “requirements” of the Civil Code and the Code of Civil Procedure do not apply unless otherwise specified. (Cf. In re Chantal S., supra, 13 Cal.4th at p. 200, 51 Cal.Rptr.2d 866, 913 P.2d 1075; In re Shelley J., supra, 68 Cal.App.4th at p. 328, 79 Cal. Rptr.2d 922; In re Jennifer R. (1993) 14 Cal.App.4th 704, 711, 17 Cal.Rptr.2d 759; Jones T. v. Superior Court (1989) 215 Cal. App.3d 240, 245, fn. 3, 264 Cal.Rptr. 4; In re Angela R. (1989) 212 Cal.App.3d 257, 273, 260 Cal.Rptr. 612.) We disagree.
In In re Chantal S., supra, our Supreme Court merely stated: “Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code.” (In re Chantal S., supra, 13 Cal.4th at p. 200, 51 Cal.Rptr.2d 866, 913 P.2d 1075; italics added.) The court did not hold that provisions of other codes are inapplicable unless otherwise specified.
Our review of the cases cited by the parties on this question reveals that none involved application of a statute found in Part 1 [“Of courts of Justice;” §§ 33-286] of the Code of Civil Procedure.
Thus, In re Chantal S., supra, 13 Cal.4th 196, 51 Cal.Rptr.2d 866, 913 P.2d 1075, held
In re Jennifer R., supra, 14 Cal.App.4th at 708, 17 Cal.Rptr.2d 759 and Jones T. v. Superior Court, supra, 215 Cal.App.3d 240, 264 Cal.Rptr. 4, both held former
In re Angela R., supra, 212 Cal.App.3d 257, 260 Cal.Rptr. 612, held
The provisions of Part 1 of the Code of Civil Procedure (“Of Courts of Justice“) are of a different nature from any of the foregoing statutes. The statutes in Part 1 provide for the fundamental empowerment of the courts, including the juvenile court.
Thus, to pick but a few examples,
Could anyone contend that these provisions of part 1 of the Code of Civil Procedure, providing for the fundamental power and authority of oil courts, do not apply to a juvenile court hearing a dependency case? We think not. Rather, we believe it beyond dispute that many statutes in part 1 of the Code of Civil Procedure must apply to juvenile courts hearing dependency cases without express incorporation in the Welfare and Institutions Code. In our view, section 128.7 is one of these.
Wolff and County Counsel contend juvenile courts lack `inherent power” to impose sanctions and exceed their jurisdiction by doing so. (Cf. Bauguess v. Paine (1978) 22 Cal.3d 626, 635-639, 150 Cal. Rptr. 461, 586 P.2d 942 [superseded by statute, as stated in Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 809, 11 Cal.Rptr.3d 298, 86 P.3d 354].) But section 128.7 authorizes juvenile courts, like other civil courts, to impose sanctions without resort to “inherent power“; therefore the use of that authority does not exceed their jurisdiction.
Finally, County Counsel asserts public policy does not favor sanctions in dependency proceedings. But if sanctions are authorized by statute, contrary “public policy” arguments must fail because statutes codify public policy. County Counsel‘s speculative “parade of horribles“—a “chilling effect on the riling of juvenile dependency petitions” and an “increase [in] the volume of juvenile dependency appeals“— is better addressed “on the other side of Tenth Street, in the halls of the Legislature.” (Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 711, 252 Cal.Rptr. 613.) In any event, we have already said that the policy underlying section 128.7 favors its use in dependency proceedings. (See Discussion at pp. 22-23, ante.)
For all the above reasons, we conclude that the juvenile courts may order sanctions under section 128.7 in dependency proceedings.
II
The next issue is whether a juvenile court referee is authorized to order sanctions pursuant to section 128.7. We conclude the answer is “yes” because a juvenile court referee in dependency proceedings has essentially the same powers as a judge and any differences are not material to this issue.
“A referee shall hear such cases as are assigned to him or her by the presiding judge of the juvenile court, with the same powers as a judge of the juvenile court, except that a referee shall not conduct any hearing to which the state or federal constitutional prohibitions against double jeopardy apply unless all of the parties thereto stipulate in writing that the referee may act in the capacity of a temporary judge.” (
Thus, the statutory scheme authorizes a juvenile court referee in dependency proceedings to make almost any order (subject to rehearing by a juvenile court judge) which a judge could make. This authority necessarily includes the authority to order sanctions pursuant to section 128.7.12
County Counsel disagrees, citing
County Counsel also cites In re Edgar M. (1975) 14 Cal.3d 727 at page 732, 122 Cal.Rptr. 574, 537 P.2d 406; In re Damon C. (1976) 16 Cal.3d 493 at page 498, 128 Cal.Rptr. 172, 546 P.2d 676; and In re Darrell P. (1981) 121 Cal.App.3d 916 at page 923, 175 Cal.Rptr. 682. However, it fails to explain how these decisions support its argument. We conclude they do not.
In re Edgar M., supra, and In re Damon C, supra, construe a now-repealed provision (former § 558, repealed by Stats. 1976, ch. 1068, § 17, p. 4781) which governed juvenile criminal proceedings, (In re Damon C., supra, 16 Cal.3d at p. 498, 128 Cal.Rptr. 172, 546 P.2d 676; In re Edgar M., supra, 14 Cal.3d at p. 732, 122 Cal.Rptr. 574, 537 P.2d 406.) In re Darrell P.. supra, holds that a juvenile court in a criminal proceeding can constitutionally order a rehearing under section 252 without first obtaining a transcript of testimony heard by a referee. (In re Dairell P, supra, 121 Cal.App.3d at p. 918, 175 Cal, Rptr. 682.) None of these decisions holds or implies that juvenile court referees may not order sanctions under section 128.7.
Finally, County Counsel asks us to decide whether, if referees have the authority to order sanctions under section 128.7, those orders are subject to rehearing by juvenile court judges under section 252. County Counsel has requested judicial notice of purported Sacramento County juvenile court orders in other cases which hold that referee-made sanctions orders are not subject to rehearing. Although we granted the request for judicial notice, we conclude the question is not properly before
III-IV**
DISPOSITION
The judgment (order of sanctions and attorney‘s fees) is affirmed. Dale S. Wilson shall receive his costs on appeal. (
BUTZ and CANTIL-SAKAUYE, JJ., concur.