In re Marriage of Bianco
In Re the Marriage of GREGORY J. and MARCELA BIANCO. GREGORY J. BIANCO, Respondent, v. WINIFRED WHITAKER, Appellant
- Proceeding
- appeal from orders
- Trial court
- Superior Court of San Diego County · No. D520702
- Trial judges
- Edlene C. McKenzie; William H. McAdam (commissioner)
- Outcome
- reversed — Reversed.
- Area
- family
- Panel
- Judith D. McConnell (author)
Analysis
The trial court imposed $43,000 in joint and several sanctions on attorney Winifred Whitaker and her co-counsel under California Rules of Court, rule 2.30(b), for violating the State Bar Rules of Professional Conduct in a family law dissolution proceeding. The Court of Appeal reversed the orders, holding that rule 2.30(b) does not apply to family law proceedings and does not authorize sanctions for violations of the Rules of Professional Conduct.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order imposing $43,000 in joint and several sanctions under rule 2.30(b) for violation of Rules of Professional Conduct“We conclude rule 2.30(b) did not authorize the sanctions and, consequently, we reverse the court's orders.” | unclear | error | agree with court agree with court |
Authorities
- relied: Juarez v. Superior Court (1982) 31 Cal.3d 759 — Mistrial orders are not appealable.
- relied: Heavy Duty Truck Leasing, Inc. v. Superior Court (1970) 11 Cal.App.3d 116 — Mistrial orders are not appealable.
The appellate opinion: sound — The opinion correctly identifies that Rule 2.30(b) is limited to 'general civil cases' and that family law proceedings are explicitly excluded by Rule 1.6(4). It also correctly notes that the Rules of Professional Conduct are not part of the California Rules of Court, which is the prerequisite for Rule 2.30(b) sanctions. The reasoning is direct and supported by the text of the rules cited.
The trial court declared a mistrial after learning that the attorney Whitaker had engaged as cocounsel was ineligible to practice, denied husband's sanctions motion under Family Code section 271, but granted it under California Rules of Court rule 2.30(b), imposing $43,000 jointly and severally on Whitaker and her cocounsel for violating Rules of Professional Conduct rules 1-300 and 1-311. The Court of Appeal, after requesting supplemental briefing, held rule 2.30(b) did not authorize the sanctions because the Rules of Professional Conduct are not California Rules of Court and rule 2.30 does not apply to family law proceedings, and it reversed the sanctions orders while declining to review the mistrial order as nonappealable and untimely.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order imposing $43,000 in monetary sanctions jointly and severally on attorneys Whitaker and Smith under California Rules of Court rule 2.30(b) for violating Rules of Professional Conduct rules 1-300 and 1-311“As rule 2.30(b) does not authorize sanctions for violations of the Rules of Professional Conduct nor does the rule apply in family law proceedings, the rule did not authorize the sanctions imposed in this case.” | de novo | error (statutory interpretation) | agree with court The court did not expressly state a standard, but it resolved the appeal on a pure question of law: whether rule 2.30(b) authorized the sanction. The text of rule 2.30(a) limits the rule to the California Rules of Court governing general civil, unlawful detainer, probate, appellate division, and small claims cases; rule 1.6(4) excludes family law proceedings from 'general civil case'; and the Rules of Professional Conduct are State Bar rules, not Rules of Court (rule 1.4; State Bar rule 1.5(H)). Both independent grounds are supported by the plain text, so the trial court lacked authority to impose the sanction and reversal was required regardless of the merits of the ethical finding. |
August 2011 order granting a mistrial after discovery that cocounsel was ineligible to practice law“This order is not appealable. (Code Civ. Proc., § 904.1; Juarez v. Superior Court (1982) 31 Cal.3d 759, 765; Heavy Duty Truck Leasing, Inc. v. Superior Court (1970) 11 Cal.App.3d 116, 119.)” | unclear | not reached | agree with court Appealability is jurisdictional and a mistrial order is not among the orders listed in Code of Civil Procedure section 904.1; the cited authorities (Juarez; Heavy Duty Truck Leasing) establish that such interlocutory orders are reviewable, if at all, by writ. The court also correctly noted the notice of appeal was filed more than 180 days after entry of the order in the minutes, making it untimely under rule 8.104(a)(1)(C) even if appealable. Declining to reach the mistrial order was proper. |
Authorities
- relied: Juarez v. Superior Court (1982) 31 Cal.3d 759 — An order granting a mistrial is not an appealable order; review is by extraordinary writ.
- relied: Heavy Duty Truck Leasing, Inc. v. Superior Court (1970) 11 Cal.App.3d 116 — An order granting a mistrial is not appealable under Code of Civil Procedure section 904.1.
- missed: Bauguess v. Paine (1978) 22 Cal.3d 626 — A trial court has no inherent power to impose attorney fee sanctions on counsel absent statutory or rule-based authority; this would have confirmed that the sanction could not be sustained on any alternative ground once rule 2.30(b) was found inapplicable.
The appellate opinion: sound — The court correctly identified a threshold legal question the parties had not raised, obtained supplemental briefing, and resolved it on the plain text of rules 2.30(a), 1.6(4), and 1.4 and the State Bar rules, with two independent grounds each sufficient for reversal. It did not expressly consider whether the sanction could be affirmed on any other legal basis, but given the trial court denied section 271 relief and no other authority was invoked, the omission does not undermine the result.
Opinion — McConnell
Filed 11/22/13 CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of GREGORY J. and MARCELA BIANCO. D062061 GREGORY J. BIANCO, Respondent, (Super. Ct. No. D520702)
v.
MARCELA BIANCO,
Respondent;
WINIFRED WHITAKER,
Appellant.
APPEAL from orders of the Superior Court of San Diego County, William H.
McAdam, Judge, and Edlene C. McKenzie, Commissioner. Reversed.
Law Office of Carolyn Chapman and Carolyn Chapman for Appellant Winifred Whitaker.
Linda Cianciolo for Respondent Gregory Bianco. INTRODUCTION Attorney Winifred Whitaker appeals from February and March 2012 orders jointly and severally sanctioning her $43,000 under rule 2.30(b) of the California Rules of Court (rule 2.30(b)) for violating the California State Bar Rules of Professional Conduct by negligently hiring an attorney ineligible to practice law to assist her in representing wife in a dissolution trial.1 Whitaker contends the court abused its discretion in sanctioning her because: (1) it is unclear from the record whether husband sought sanctions under rule 2.30(b); (2) the court based the orders on an erroneous finding Whitaker had committed an ethical violation; (3) Whitaker demonstrated good cause for the court not to sanction her; (4) the court failed to consider the burden on Whitaker before imposing the sanctions jointly and severally; and (5) the sanctions order included amounts not authorized by rule 2.30(b).
We requested and received supplemental briefing on the foundational issue of whether rule 2.30(b) authorized the court to impose sanctions for a violation of the Rules of Professional Conduct in a family law proceeding. We conclude rule 2.30(b) did not authorize the sanctions and, consequently, we reverse the court's orders.2 1 Whitaker also appeals from an August 2011 order granting a mistrial. This order is not appealable. (Code Civ. Proc., § 904.1; Juarez v. Superior Court (1982) 31 Cal.3d 759, 765; Heavy Duty Truck Leasing, Inc. v. Superior Court (1970) 11 Cal.App.3d 116, 119.) Even if the order were appealable, the appeal is untimely as Whitaker filed the notice of appeal more than 180 days after the court entered the order in its minutes. (Cal. Rules of Court, rule 8.104(a)(1)(C), (c)(2) & (e).) Consequently, we decline to address any appellate issues related to the propriety of the mistrial order.
2 Given our disposition, we need not address Whitaker's requests for judicial notice. 2 BACKGROUND Whitaker represented wife in dissolution proceedings. Whitaker engaged attorney Thomas W. Smith to act as her cocounsel at trial and he so acted even though he was ineligible to practice law at the time because of failing to comply with mandatory continuing legal education requirements. On the last day of the trial, the court learned of Smith's ineligibility. The court declared a mistrial and invited husband to bring a sanctions motion.
Husband subsequently moved for sanctions under Family Code section 271 (section 271) and rule 2.30(b) for Whitaker's violation of rules 1-300 and 1-311 of the Rules of Professional Conduct.3 The court denied the motion under section 271, but granted it under rule 2.30(b). At a later hearing, the court determined the amount of sanctions to be $43,000, which the court imposed jointly and severally on Whitaker and Smith.
DISCUSSION
Rule 2.30(b) provides in part: "In addition to any other sanctions permitted by law, the court may order a person . . . to pay reasonable monetary sanctions . . . for failure with good cause to comply with the applicable rules. For the purposes of this rule, 3 Rules of Professional Conduct, rule 1-300(A) provides: "A member shall not aid any person . . . in the unauthorized practice of law." Rules of Professional Conduct, rule 1-311(B)(2) provides: "A member shall not employ, associate professionally with, or aid a person the member knows or reasonably should know is a[n] . . . involuntarily inactive member to perform the following on behalf of the member's client: [¶] . . . [¶] Appear on behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator, mediator, court, public agency, referee, magistrate, commissioner, or hearing officer."
3 'person' means . . . a party's attorney . . . . If a failure to comply with an applicable rule is the responsibility of counsel and not of the party, any penalty must be imposed on counsel and must not adversely affect the party's cause of action or defense." Rule 2.30(b) applies to "the rules in the California Rules of Court relating to general civil cases, unlawful detainer cases, probate proceedings, civil proceedings in the appellate division of the superior court, and small claim cases." (Cal. Rules of Court, rule 2.30(a), italics added.)
Rule 2.30(b) does not apply in this case for two reasons. First, the Rules of Professional Conduct are not part of the California Rules of Court. They are part of the Rules of the State Bar of California.4 (See Cal. Rules of Court, rule 1.4; Rules of State Bar, rule 1.5(H).) Second, this is not a general civil case. " 'General civil case' means all civil cases except . . . family law proceedings." (Cal. Rules of Court, rule 1.6(4).)
As rule 2.30(b) does not authorize sanctions for violations of the Rules of Professional Conduct nor does the rule apply in family law proceedings, the rule did not authorize the sanctions imposed in this case. We must, therefore, reverse the sanctions order.5 4 The California Rules of Court are adopted by the Judicial Council of California and, in some instances, the California Supreme Court. (Cal. Rules of Court, rule 1.3; Cal. Const., art. VI, § 6, subd. (d).) The Rules of Professional Conduct are adopted by the Board of Governors of the State Bar of California and approved by the California Supreme Court. (Rules Prof. Conduct, rule 1-100(A); Bus. & Prof. Code, § 6076.)
5 Effective January 1, 2013, after the conduct at issue in this case occurred, the Judicial Council of California adopted a new rule authorizing sanctions for violations of 4 DISPOSITION The court's orders jointly and severally sanctioning Winifred Whitaker and Thomas Smith $43,000 are reversed. The parties are to bear their own appeal costs.
MCCONNELL, P. J.
WE CONCUR:
NARES, J.
AARON, J.
court rules in actions or proceedings brought under the Family Code. (Cal. Rules of Court, rule 5.14.) 5
Cites, in this corpus
- Juarez v. Superior Court L.A. 31483 · 1982-07-01
- Heavy Duty Truck Leasing, Inc. v. Superior Court Civ. No. 36695 · 1970-09-04