SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE LAMOREAUX JUSTICE CENTER ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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1 ATTORNEY LAW OFFICES OF ATTORNEY 123 Main St. Suite 1 City, CA Telephone: ( Facsimile: ( attorney@law.com Attorney for Respondent ABE Y. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE LAMOREAUX JUSTICE CENTER SONDRA R. Y., Petitioner, vs. ABE Y., Respondent. Case No.: 12D RESPONDENT'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PETITIONER'S REQUEST FOR ORDER; DECLARATION OF ATTORNEY A. Date: 1/16/13 Time: 1:45 p.m. Dept: Respondent Abe Y. respectfully submits for this Court's consideration the following Opposition to Petitioner's Request for Order as filed with the Court on December 13, STATEMENT OF FACTS This legal separation (without children action was initiated by Petitioner Sara R. Y. in the Riverside Superior Court (Indio Larson Justice Center, case number IND on October 17, The case was transferred to this jurisdiction on January 26, /// Page 1

2 Petitioner's current counsel, Attorney Z., is Ms. Y.'s fourth attorney in this matter 1. Petitioner dismissed her first attorney (Attorney H. on January 19, Petitioner then substituted in Attorney K. to represent her. On July 22, 2011, Petitioner dismissed Attorney K, substituting in yet a third attorney, Attorney P.. This court scheduled an Order to Show Cause hearing for July 2, That hearing was continued by Petitioner's attorney so that she could file a motion to be relieved as counsel. Attorney P. was subsequently relieved. Following Attorney P.'s withdrawal as counsel, Respondent's attorney, Attorney A., contacted Petitioner, who was without representation, to request an address where he could send the documents required pursuant to Family Code Petitioner told Attorney A. not to serve the papers as she had been evicted from her residence and she did not have an address or location where she could be served. A trial date had been set for September 4, 2012; however, Petitioner had no counsel and requested a continuance in order to hire an attorney. The Court ordered the trial continued to November 13, On November 13, Attorney Z. made a special appearance for the petitioner and at that time filed a Notice of Limited Scope Representation. This was Respondent's first opportunity to serve Petitioner with the final declaration of disclosure and current income and expense declaration, which was served on Petitioner at the time of the hearing. (See attached Declaration of Attorney A.. On December 13, 2012, Attorney Z. requested ex parte emergency relief for a continuance of the trial "to get up to speed on this case." (Petitioner's Request for Order, Memorandum of Points and Authorities, 1st page 2. Petitioner's counsel argued that the issues in this case are complicated and that his ability to represent his client is hindered by the respondent's alleged lack complete and accurate disclosure. (Petitioner's Request for Order, item Respondent has been represented by current counsel since his first appearance in this matter. 2 The Memorandum is not paginated. Page 2

3 Specifically, Attorney Z. contends that the respondent's Preliminary/Final Declaration of Disclosure is "completely deficient." (Petitioner's Request for Order, item 10. In support of this allegation, Petitioner's attorney notes that: Respondent did not list the names and numbers for his retirement accounts; Respondent provided no documentation to support the values stated on his declaration of disclosure; Respondent claimed tax liabilities for the years 2004 and 2005 even though the Tax Court found Petitioner not liable under innocent spouse relief; and Respondent has failed to produce documentation requested in discovery by prior attorneys. (Petitioner's Request for Order, item 10. Attorney Z. acknowledges that he has up to three boxes of documentation that he has inherited in this case, which he has yet to fully review and which includes deposition transcripts and legal pleadings. (Petitioner's Request for Order, item 10. The Court denied Attorney Z.'s request for a continuance of the trial but did grant Petitioner's request regarding sufficiency of Respondent's filings and documentation prior to trial. Petitioner has requested that this Court order Respondent to augment his Final Declaration of Disclosure with information sufficient to comply with the statutory requirements. 3 Petitioner's Request for Order has also requested an order for sanctions 4 33 This is Respondent's interpretation of the confusingly worded statement: "The document is wholly deficient, and Ludwig Law Center, Inc., request this Court order Respondent to Augment his Final Declaration of Disclosure the provide the required information with sufficient particularity, prepare of supplement the appropriate disclosure[sic]." (Petitioner's Request for Order, Memorandum of Points and Authorities, 1st page. 4 Although the wording is ambiguous, it appears as though the petitioner is requesting monetary sanctions with an additional request for issue sanctions if Respondent fails to augment his final declaration of disclosure. Page 3

4 against Respondent for Respondent's alleged failure to comply with Family Code sections 2106 and ARGUMENT I. Respondent Served Petitioner With the Final Declarations on November 13, Family Code section 2105 requires, each party to serve on the other, no later than 45 days before trial, a final declaration of disclosure and current income and expense declaration, executed under penalty of perjury. Respondent served these declarations on Petitioner on November 13, 2012, which was the first available day in which Respondent could do so. Respondent was unable to serve the declarations earlier because Petitioner told Respondent's attorney not to serve her at the address he had for her and she did not provide any other location and/or address where she could be served. Since Petitioner was without legal representation from August 2012 until November 13, 2012 and provided no address, Respondent had no way of serving these documents on Petitioner. (See attached Declaration of Attorney A.. II. Sufficiency of Respondent's Disclosure Family Code section 2107 provides that if a party "fails to provide the information required in the [final declaration of disclosure under Section 2105] with sufficient particularity, and if the other party has served the respective declaration of disclosure on the noncomplying party, the complying party may... request preparation of the appropriate declaration of disclosure or further particularity." (Family Code section 2107(a. Petitioner, by this Request for Order, presumably is making a request pursuant to this section, or more specifically, a request that this Court order Respondent to augment his final declaration with sufficient particularity. The deficiencies in Respondent's final disclosure as claimed by Petitioner can be found in Item 10 ("Facts in Support" on the Request for Order. Petitioner, through counsel, declares that the respondent's final declaration of disclosure does not list the 5 Respondent cites only these two code sections. Page 4

5 names, account numbers, and values of Respondent's retirement accounts; has no documentation to support values 6 ; and claims tax liabilities for which the petitioner is not liable (as an innocent spouse. Retirement Accounts Respondent allows that he has not provided complete information 7 regarding his retirement accounts, of which he has two. The total value of both accounts was disclosed in Respondent's Final Declaration of Disclosure served on Petitioner on November 13, Respondent has served an amended Final Declaration of Disclosure on Petitioner with the information regarding his retirement accounts. Values Attorney Z. declares in Item 10 that "no documents at all were attached to support his values...." By this Respondent understands Petitioner to mean the values Respondent assigned to the real estate (described in Respondent's disclosure as 123 Street, City, CA, household furniture, jewelry and antiques, vehicles (described in Respondent's disclosure as 2003 Cadillac Escalade, 1999 Ford Explorer, 1997 Safari, and Limo, the interest in the land in San Dimas, tax refunds, proceeds from note, proceeds from sale of land, and bank account withdrawal (by Petitioner. As to the Lakeview Trail property, Respondent has been in the real estate business for many years and has expertise in the valuations of properties. Furthermore, he consulted other real estate agents regarding the value of the Lakeview Trail property. His valuation of this property is based on both his expertise and that of those real estate agents with whom he has consulted. Likewise, the value of the San Dimas land, of which 21% is jointly owned by the petitioner and the respondent, is based upon Respondent's real estate expertise. The household furniture, which has a minimal value, is a reasonable estimate based upon Respondent's knowledge of its value. The jewelry and antiques are in 6 The declaration is unclear on which values this is in reference to. 7 Names and account numbers. Page 5

6 Petitioner's possession; therefore, Respondent was only able to estimate the value of these items and, in any event, Respondent has no expectation that he will receive any of these items. The value of the vehicles are the Respondent's estimated values and can be easily confirmed by consulting Kelly Blue Book or a similar vehicle valuation service. Regarding the value of the tax refunds (2007 and 2008, proceeds from note and sale of land, and the petitioner's withdrawal of bank funds, the petitioner is well-aware of those values as it was she who has enjoyed the benefits thereof. All of these items are items of which the petitioner alone received (or took and 2005 Tax Liabilities Respondent accurately valued the tax liabilities in his final disclosure as he is required to do. He acknowledges that pursuant to the United States Tax Court Memo , filed on September 4, 2012, these liability are his alone. III. PETITIONER HAS FAILED TO COMPLY WITH THE APPLICABLE DISCLOSURE REQUIREMENTS AND THEREFORE, AS A NONCOMPLYING PARTY, SHE CANNOT REQUEST SANCTIONS AGAINST RESPONDENT. Petitioner's points and authorities in support of her Request for Order, cites one case, Marriage of Fong ( Cal. App. 4th 278, by quoting seven consecutive paragraphs directly from that case as the only support for her request. (Petitioner's Request for Order, Memorandum of Points and Authorities, 4th, 5th and 6th pages The extended citation that Petitioner's argument apparently rests upon as support for her request is wholly concerned with whether, under Family Code section 2107, a noncomplying party can request sanctions of the other party for noncomplying. The Fong authority that Petitioner cites makes an argument against the very remedy she seeks herein. Family Code 2107(a provides that if one party "fails to provide the information required in the respective declarations [of disclosure] 8 with sufficient particularity and if the other party has served the respective declaration of disclosure on the noncomplying 8 (As relevant here, in the final declaration of disclosure under Section 2105 Page 6

7 party, the complying party may, within a reasonable time, request preparation of the appropriate declaration of disclosure or further particularity." (Family Code 2107(a. The statute further provides that a noncomplying party who "fails to comply with any provisions of this chapter [ ]" shall be, with certain exceptions, subject to monetary sanctions. (Family Code 2107(c. The Fong Court construed section 2107, subdivision (c to mean that only a complying party "is entitled to seek an award of monetary sanctions against the other party for failure to comply with the applicable disclosure requirements." (Fong, supra, 193 Cal. App. 4th at p Here, Petitioner is guilty of the same noncompliance for which she seeks sanctions against Respondent. Section 2105(b lists the information that should be included in the final declaration of disclosure, to wit: (1 All material facts and information regarding the characterization of all assets and liabilities. (2 All material facts and information regarding the valuation of all assets that are contended to be community property or in which it is contended the community has an interest. (3 All material facts and information regarding the amounts of all obligations that are contended to be community obligations or for which it is contended the community has liability. (4 All material facts and information regarding the earnings, accumulations, and expenses of each party that have been set forth in the income and expense declaration. (Family Code 2105(b. The petitioner's final declaration of disclosure 9 served on the respondent and dated September 30, 2011 is not only out of date, but fails to include the material facts required by section 2105(b. While Petitioner seeks an order for sanctions against Respondent for "failure to comply with Family Code 2106 & 2107 [sic]" (Petitioner's Request for Order, Memorandum of Points and Authorities, 2nd page, Petitioner has herself failed to comply. 9 Attached herein as Exhibit A. Page 7

8 For example, Petitioner substantiates her allegations that Respondent has not complied by stating that Respondent has not provided the names and numbers for his retirement accounts or documentation to support the values stated on his declaration of disclosure. On Petitioner's final declaration, she simply lists, under items 12 and 13 "Petitioner's Retirement/Pension" and "Petitioner's IRA" all with a current gross fair market value of "TBD." (See attached Exhibit A. Nowhere in her disclosure is the value of her retirement/pension or IRA disclosed; nor does she provide any names or numbers or attach any copies of the latest statement for any of these accounts. Her final declaration also entirely fails to provide any support for those assets or debts on which she does state a value and many assets are valued as simply "TBD." (See attached Exhibit A. CONCLUSION For the reasons stated above, the respondent respectfully requests that the Court deny the petitioner's request for order. Dated:, 2012 By: ATTORNEY A. Attorney for Abe Y. Page 8