Escolar Documentos
Profissional Documentos
Cultura Documentos
OLIVIER GARBE,
Respondent.
DIANA Q.DONG
1906 Worthington Cir.
Santa Clara CA 95050
(408)666-8116
Appellant DIANA Q. DONG,in pro. per.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
and
OLIVIER GARBE,
Respondent.
DIANA Q.DONG
1906 Worthington Cir.
Santa Clara CA 95050
(408)666-8116
Appellant DIANA Q. DONG,in pro. per.
TO BE FILED IN THE CX)URT OF APPEAL APP-008
COURT OF APPEAL CASE NUMBER:
COURT OF APPEAL SIXTH APPELLATE DISTRICT. DIVISION ~
H041882
ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NO.:
SUPERIOR COURT CASE NUMBER:
NAME: DIANA Q. DONG
FIRM NAME: 608FL000101
STREET ADDRESS: 1906 Worthmgton Cir.
ciTY:Santa Clara state:ca ososo
CODE:TELPHO^E NO.: 4 08 666-8116 FAX NO.:
E-MAiLADDRESS:DianaDDong(ggmail.com
ATTr->nNPVPnR/namo- A 1 51 n1 in
APPELLANT: DIANA Q. DONG
PETITIONER:
RESPONDENT: OLIVIER G.
GARBE REAL PARTY IN INTEREST:
Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial
certificate in an appeal when you file your brief or a prebriefing motion, application,or opposition to such a
motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may
also use this form as a supplementalcertificate when you learn of changed or additional information that must
be disclosed.
1. This form Is being submitted on behalf of the following party (name ):DIANA Q. DONG
2. a. [x] There are no Interested entities or persons that must be listed in this certificate under rule 8.208.
b. [ ] Interested entities or persons required to be listed under rule 8.208 are as follows:
(1)
(2)
(3)
(4)
(5)
[] Continued on attachment 2.
The undersigned certifies that the above-listed persons or entitles (corporations,partnerships,firms, or any other
association,but not Including government entities or their agencies) have either (1) an ownership Interest of 10 percent or
more in the party if It Is an entity: or (2)a financial or other interest In the outcome of the proceeding that the justices
should consider In determining whether to disqualify themselves, as defined in rule 8.208(e)(2).
Page 1 of 1
Form Approved for Optional Use CERTIFICATE OF INTERESTED ENTITIES OR PERSONS Cal Rules of Court, rules 8.208,8.488
>Jdici3l Council of California
Yfwwcourtsca.gov
APP-OOa [Rev.January 1,2017)
TABLE OF CONTENTS
Pagefs)
TABLE OF AUTHORITIES 6
APPEALABILITY 7
INTRODUCTION 8
STANDARD OF REVIEW 12
DISCUSSION 12
Pafie(s)
CONCLUSION 31
Statutes
Family Code
271 9,10,12,
18,20,21,23,24,25,26,29
3557 9,21,23
Cases
In re Marriage of
Appellant,
and
OLIVIER GARBE,
Respondent.
)
Appealabilitv
'Clerk's Transcript(CT)31-44.
^ CT 738-750.
INTRODUCTION
under Fam. Code sections 271 and 3557,set for hearing July 15,2014.^ The
RFO contained a long laundry list of appellant's supposed sanctionable
conduct,running fi-om 2010 through 2014/ The RFO did not connect
appellant's alleged conduct to anv specific amount ofsanctions, nor did the
evidence. Yet the trial court awarded respondent $100.000 in sanctions with
no evidence that anv amount of fees/costs was due to anv specific behavior
judge with no copy to appellant, that would deprive her of due process of
law; no findings were made tojustify using secret evidence against her. San
Nor was there any other evidence to connect specific conduct to any
specific amount offees and costs. The $100.000 sanction amount was
^ CT 140 et seq.
^CT 152-153.
pulled out ofthin air with no supporting evidence.
includes 3557 as the court did not make separate awards, and both are
hearing was switched from July 15,2014 per the RFO^ to June 13,2014 by
means of a stipulation signed not by appellant but by a limited-scope
lawyer who had no authority to enter such stipulation, and which was not
served on her.^ She had come to court June 12 for a visitation review, but
Stipulation of which there is no indication she was aware. At the June 13,
to what happened during visits.^ Diana and Olivier testified about visitation
issues, and the attorneys argued. The judge stated:
'CT 140.
'CT 269-270.
'CT719.
'CT 929-930.
'RT 36-54.
RT 54-89.
back after lunch we can talk further about it."
heard, and then the hearing swung to vocational evaluator Timothy Harper
fee issue set for trial June 13,2014, and NO OTHER ISSUES OF ANY
10
KIND." One can argue that the only fees as to which he represented
appellant pertained to his Borson motion, but that is not what the notice of
review of visitation, set for hearing June 12,2014; with no notice that
"RT89.
"CT 138.
"CT 444-445.
10
hearing was moved to June 13,2014, and the only record ofthat occurring
is a minute order from June 12, with no indication anyone was present in
court June 12 and was told to return June 13 for the visitation review; as
for citing facts outside ofthe record, but there is no record to cite.
And:
"CT 137-138.
RT 16.
RT 17.
CT 722.
11
Later at this June 13^ hearing, an attorney fee award of$100,000 was made
against appellant.
there was some argument regarding respondent's request for fees and costs,
STANDARD OF REVIEW
DISCUSSION
This summary is offered only to show what went on at the hearing, not to
12
evidence on the relationship ofthe 271 sanctions to any specific behavior.
was not timely served but was a day late in spite ofa court order. The order
issue. It should be noted that in the order filed June 23 2014,the court made
Page 25^Judge Grilli lists the matters on calendar that day, and did
testify, but the judge seems unaware that visitation review was on calendar
"CT271.
"CT 738-739.
13
and asks why the supervisor is present.
Mr.Baugh reminds the court that the children's attorney, Heather Allen,
with the court's imputing $150k per year income to her, she is not
order."
ofan earlier ruling on pass through income which he raised by means ofa
20rt27.
^^CT 477-509.
^^RT90.
14
ofdecision, filed on April 29,2013.^^ The Statement of Decision contained
'yA
two references to something about pass through income or expenses.
Perhaps something more could be inferred from the attachments, but this is
not an issue on appeal. It is mentioned only so that the Court will know that
relevant to today?"
Page 161 thejudge sua sponte raised the issue ofhearsay regarding
the visitation review was interrupted by the arrival ofthe witness, Timothy
Harper, but instead ofreturning to the issue of visitation review, Mr. Baugh
Page 161: appellant tried to return to her daughter's letter, but the
judge said it was hearsay, and further:"So,let's move on with what we're
that day, but it was Mr. Baugh's agenda which took precedence.
trips to China.
Page 191: the iudee told appellant she could testify about the support
Page 191-206: Appellant offers her 2012 and 2013 income tax
16
that might be on hand and her claim that she couldn't afford to pay for
supervised visitation.
Page 206-207: The judge asks appellant whether for more than a
year she had not paid any child support, appellant responded that her
Page 210: Appellant admits the account is now in her name because
school knew she had no place to stay, and they helped her out.
17
Page 223-224: Mr. Garbe would testify that he has provided the
redacted bills and is willing to give his unredacted bills to the Court in
camera to check the fees. Thev are identical to what is Exhibit C but
unredacted bills.
THE COURT:Correct.
no attorney fee award could be based.(The first ten pages ofEx. C are
attached to this AGS. Although there are many pages to this exhibit, it
sanctions.) Nor does the record reflect that unredacted bills were ever
submitted, and it is believed that they, in fact were not submitted. That
being the case, the $100.000 271 sanction award must be reversed.
returns.
18
When she attempted to establish his 2012 income,she asked about his 2012
Page 240 respondent testifies: "1 agree that line 22, which is talking
than clear.
daycare.
"RT238.
19
Page 246: He denies having an apartment in Paris.
we're here for." Visitation review regarding the need,if any,for continued
Pages 253-254: Appellant asks about dates when the children were
Page 256: The court gives appellant a 3-minute warning that the
Page 260: THE COURT:And let me,just so I'm clear, you're asking
20
Pages 261:264 Attorney Baugh argues the 271 sanctions issue
never connecting any particular amount offees or costs with problems with
appellant.
sanctions:
The State Bar Association on its website lets people know how to
detect bill padding, but the comments are relevant here where it was
sanctions padding. The Bar points out that round numbers are probably
"estimates":
the very round number of $100,000. In fact, in the present case there wasn't
http://www.calbar.ca.gOv/portals/0/documents/mfa/2014/2003-
0l_Detecting-Atty-Bill-Paddingr.pdf
21
mere rounding; there was simply picking a number based on no evidence.
In the present case there wasn't even any detail as to any connection
There are 26 volumes ofthe court file. Mother has filed 21 separate
motions since October 1,2010, which are listed in the attachment to
Father's Request for Orders relating to attorney's fees filed March
27,2014. In addition, she filed for bankruptcy, which was later
dismissed.^^
And:
The Court finds that a significant portion ofthe fees and costs
incurre4 in this matter were not reasonably necessary. Petitioner
(Mother) has, as was previously found earlier in this matter,
prolonged this matter and unnecessarily complicated the litigation.
She has failed to follow the requirements ofthe Employment Efforts
Order, failed to pay any child support in accordance with the support
orders, failed to pay child support add ons as required by order, and
failed to pay her court ordered share ofthe non-covered health care
costs for her children. In addition, she has embroiled the children in
the custody dispute, which required an emergency screening
resulting in supervised visitation for Mother. She has also violated
the rules for supervised visitation. Further,she set up a
secret account for the minor child to encourage and dictate her role
in the custody action.
The actions ofthe Mother have resulted in substantial fees and costs
that were often not
necessary. In addition; she failed to disclose the purchase ofa new
residence for over a million dollars in cash. Her Income and Expense
27
Id.
^ Ct 744.
22
Declaration failed to mention the home or its value, as well as any
costs for taxes and other payments. She claimed poverty while
having at least $400,000 in cash &om her father. While she claimed
that this was only to be used to purchase a home,it is clear that she
did not put all ofit into the home. Her testimony concerning the
house purchase and her assets changed several times during the
hearing.
In addition, Mother's testimony concerning available cash and
resources for her living expenses was simply not credible. It is clear
that she is paying her living expenses and was able to raise in excess
ofa million dollars to buy a house, while, at the same time, choosing
not to pay for the support ofher children pursuant to court orders.
Father was required to seek court assistance to attempt to recover
child support from Mother.
Based upon all ofthe above and the files and evidence in this
matter, pursuant to Family Code 271 and 3557,Petitioner
(Mother)shall pay to Respondent father), as and for fees and
sanctions, the sum of$100,000.^^
For purposes of this appeal, appellant must accept that the trial court found
she behaved in the manner stated above. In addition to that, Diana was in
present record, but doubtless respondent will bring it up, and appellant is
not concealing it.) But none ofthat means that sanctions can be awarded
CT 744-745.
23
In Sagonowsky the party requesting sanctions did make some
pendens,to appoint the clerk as agent to execute the deeds for the Ashbury
and Filbert properties, and to file the rents motion and section 271 motion.
Kekoa also stated he lost $180,000 when Sagonowsky interfered with the
sale ofthe Ashbury property(6 Cal. App. 5th 1142 at 1148,212 Cal. Rptr.
delaying the sale ofthe home(6 Cal. App. 5th at 1147). In addition, the
trial court ordered $500,000 in sanctions to pimish the wife for her
"relentless and culpable conduct... ."(6 Cal. App. 5th at 1154,212 Cal.
Rptr. 3d at 19.)
And:
the amount the court awarded was excessive because $680,000 was
untethered to attorney fees and costs incurred by Kekoa.(6 Cal.
App. 5th at 1153,212 Cal. Rptr. 3d at 18.)
that is, must show that any award is "tethered" to the amoimt offees and
costs. Arguably, having pleadings that make the connection between the
24
fees and the behavior could be sufficient"-but here no pleadings puiport to
make that connection. The $100,000 fLgure wasjust floating out there, not
tethered to anything.
sanctions." The gist ofthe 271 RFO filed by respondent was a list of
specifically rejected that entire list as something that could justify 271
sanctions.
at the hearing but by a Findings and Order After Hearing,filed Jime 23,
2014."
Rptr. 2d 18, Justice King pointed out that where the only information on
'CT444etseq.
"CT744,etseq.
25
which the trial court could have based its judgment was the unsworn
140, thejudgment cannot be upheld. Further it did not matter that there was
object to. In a situation similar to the present case. Justice King pointed out:
bills were completely whited out except for the initials ofthe person
26
March 3,2014, attorney Salomon Quintero had filed a notice of
attomey on "Attomey fee issue set for trial June 13,2014,and NO OTHER
ISSUES OF ANY KIND."^^ One could argue that the only fees as to which
he represented appellant pertained to his Borson motion, but that is not
send him away and then hear the issue of271 sanctions.
It has long been the law in California that family law litigants are
entitled to due process oflaw, which includes the right to retained counsel
CT 138.
"CT 444-445.
27
ofa civil litigant's due process rights. U.S. Constitution, 14 Amendment,
California Constitution, Art. I, 7(a).
the beginning ofthe hearing held on June 13,2014,but the trial court
excused him.
Diana was "Hke the pro per in Elkins,[left] to haplessly flail away." But for
RT 16.
"RT 17.
28
The RFO filed on behalf ofrespondent on Mar.27,2017,indicated
July 15,2014 as the hearing date.^^ The attorney for respondent had a proof
ofservice for that date, but it was sent to appellant at a former address.^^
She had not filed a notice ofchange of address, so technically this
scope. While old cases often held that if a party's lawyer knew,it's
presumed he informed the client. But those old cases were decided before
The only way Diana found that the hearing had been moved to June
13^ was by coming to court for her hearing on June 12^.(As stated above,
this is not reflected in the record, and apologies are made, but no record
CT 140.
"CT 170; RT22-23.
^RT 269-270.
CT 137-138.
29
was created.) The court's June 13 minute order gives no reason or
procedural explanation for why the hearing^ was moved from June 12^ to
June 13^.It appears that the court clerk, like Diana,didn't know that
hearing ofDiana's RFO had been moved from the 12^ to the 13."*^
Appellant managed to object:"I have not been served on time."^^ In
response to that objection, attomey Baugh pointed out the Proofof Service
July 15*^the original date, which by April 1,2014 had not been moved
according to anyone's thinking. There was no proof ofservice on Diana of
a writing showing the June 13^ hearing date. She continued to object:
THE PETITIONER: The and also I never been served
THE COURT: Well, understand, ma'am--
THE PETITIONER: I didn't aware anything about
THE COURT: Ma'am, your objection is noted and
overruled.^
Her objection that there was no valid proof ofservice on her was
valid.
'^CT719.
RT 19.
^'RT19.
'*^RT20,CT1070.
^RT233.
928-930.
30
CONCLUSION
The court's order against appellant for 271 sanctions in the amount
order.
31
CERTIFICATE OF WORD COUNT
I am appellant herein.
32
STATEMENT^IFFICE COPY
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BRADFORD BAUGH
DOK BAUGH. TARVIN&AMINI
AN AS^CIATION OF ATTORNEYS j m/ r I / -7f f
1550 THE ALAMEDA. SUITE 155 lAlFR THAN
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BRADFORDBAUGH . JAN 31.2011 . .
. DOK, BAUGH; TARVIN & AMINl
' AN AS^CIATION OF ATTORNEYS
1550 WE AlAMEOA, SUITE 155 lAThR THAN I
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DDK, BAUGH. TARVIN & AMINI '
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is..
FL-335
ATTORNEY OR PARTY WfTHOUT ATTORNEY(Name, State Bar number, and adtkeaa): FOR COURT USE ONLY
DIANA Q. DONG
HEARING DATE:
OTHER PAREI^/PARTY:
HEARING TIME:
NOTICE: To serve temporary restraining orders you must use personal service(see form FL-330).
1. i am at ieast 18 years of age. not a party to this action, and I am a resident of or employed in the county where the mailing took
place.
2. My residence or business address is: 498 Umbrla Pi., San Jose CA 95128
c. Date mailed: it
d. Place of mailing and s/afej; Santa Clara, CA
I I I served a request to modify a child custody, visitation, or child supportjudgment or permanent order which included an
address verification declaration.(Declaration Regarding Address VerificationPo^udgmentReque^to Modify a Chiid
Custody, Visitation, or Chiid Support Order{form FL-334) may be used for this purpose.)
6. i declare under penalty of perjury under the laws of the State of California that the foregoing is tme and correct
Date: f//fZ-XJCy)1
FENG WEN
(TYPE OR PROO'NAME) (SIGNATURE OF COMPLETING THIS FORM)
Page 1 of 1
Fomt Approved for Optional Use Code of Civil Procedwo, 1013,1013a
Judicial Council of Califbmia PROOF OF SERVICE BY MAIL
FL-335[l%sv.January 1,2012]
44
FL-335
ATTORNEY OR PARTY WITHOUT ATTORNEY (Aits/nff, Statt Bar number, anUaddree^; FOR COURT USE ONLY
DIANA Q. DONG
HEARING DATE:
OTHER PARENT/PARTY:
HEARMGTME:
NOTICE: To serve temporary restraining orders you must use personal ser>rice(see form FL-330).
1. I am at least 18 years of age, not a party to tfils action, and I am a resident of or employed In ttie county the mailing took
place.
f,,
2. My residence or business address is: 498 Umbria Pi., San Jose CA 95128
Date: tZ/f 17 k. /
-G
"G WEN
r
(TYPE OR PRINT NAME) (SIGNATdre OF PERSW COMPtrPNG THIS FORM)
PaMton
NOTICE: To soive tempovaiy restralnfng ordore you must use pofsonal sendee(see foim FLr330).
1. i am at least 18 years of not a party to this action, and I am a resident ofor employed in the county where the mailing todc
place.
2. My residence or business addn^ is: 498 Umbria Pi., San Jose CA 95128
5. I I I served a requestto nradity a drild custody, visitation, or child supportjudgment or permanent order wAtich Included an
address verification declaration.(DedamSon ReganSng Address VeriScaeonPostjudg^nent Request to MoOfy a CtOd
Custody, \fidtadon, or ChHd Support Order(form FL-334)may be used for this purpose.)
6. I declare under penalty of perjury under the laws ofthe State of Cailfomie that the foregoing Is true and correct
Date:Nov. 8, 2017
FENG WEN
(TVPEORPRIMTKMilQ / csiaMnri^OFPERtoNOOMiHJEirmQrHisFOisyi)
Form Approvad tar Oi>lioni Ubo Coda or CMI Procaduro^%lOia lQ13a
Judicial Council orCoiitemia PROOF OF SERVICE BY MAIL
FL-336(Rsv.January 1.Slt^
46