Filed 9/9/26 Marriage of Prince CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of STEPHEN M.
PRINCE and TERESA SUNDER
PRINCE.
D086947
STEPHEN PRINCE,
Respondent, (Super. Ct. No. 17FL006027C)
v.
TERESA SUNDER PRINCE,
Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Christopher S. Morris, Judge. Affirmed.
William M. Henrich for Appellant.
Stephen Prince, in pro. per., for Respondent.
INTRODUCTION
Appellant Teresa Sunder Prince challenges an order awarding her ex-
husband Stephen Prince $1,500 in attorney fee sanctions under Family Code
section 271 (section 271) in connection with her submission of the parties’
competing draft Findings and Orders After Hearing (FOAHs) for a hearing
held in July 2024. Stephen sought sanctions after Teresa’s attorney
submitted both proposed FOAHs under a single cover letter that contained
only Teresa’s position as to why her draft was more accurate.
In this appeal, Teresa raises two claims. She first asserts the trial
court awarded sanctions based on a new “theory,” different from the one
placed in issue by Stephen’s request for sanctions under section 271.
According to Teresa, Stephen’s request was based only on his argument that
the two attorneys had agreed to submit a joint cover letter that was to
include both parties’ positions. Instead, Teresa complains, the court relied on
her failure to comply with the requirements of California Rules of Court, rule
5.125 (rule 5.125), which sets out the procedures and requirements applicable
to party disputes over proposed FOAHs. She contends she had insufficient
notice and lacked an opportunity to be heard on the question of compliance
with rule 5.125 before the court ruled.
Alternatively, Teresa contends that the court’s sanction award is not
supported by substantial evidence. Specifically, she takes issue with the
court’s finding that she and her attorney did not comply with rule 5.125.
Teresa contends the trial court ruled on this question without considering
some of the papers she had also provided to the court, beyond her attorney’s
cover letter, and that the court thus did not have sufficient evidence to
support its determination that she did not comply with the rule.
We are unpersuaded by these arguments, and we therefore affirm the
court’s sanction order.
BACKGROUND
The sanctions order Teresa is challenging stems from conduct related
to the submission of draft proposed FOAHs in connection with a July 11,
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2024, hearing at which the court modified child and spousal support. After
the July 11, 2024, hearing, the court issued a minute order directing Teresa’s
attorney to prepare and submit a final written FOAH. Rather than
immediately prepare a draft FOAH, approximately a week after the July 11
hearing, Teresa submitted a request for order to seek a correction to the
court’s minute order. The court held a hearing on Teresa’s request for a
correction order on September 24, 2024, and agreed a clerical correction to
the July 11, 2024, minutes would be appropriate. The court entered a
“corrected” minute order that same day, and this time it ordered Stephen’s
attorney to prepare a final written FOAH for the September 24, 2024,
hearing.1
After obtaining the “corrected” minute order, Teresa’s attorney
prepared a draft FOAH for the July 11, 2024, hearing. Stephen’s attorney
disagreed with Teresa’s proposed June 11, 2024, FOAH and provided Teresa’s
attorney with his own draft FOAH related to that hearing. The attorneys
apparently made no further movement on the June 11, 2024, FOAH after
October or November 2024.
In the meantime, Teresa filed a notice of appeal from the July 11, 2024,
hearing minutes. Because those minutes directed the preparation of a formal
written order, however, this court issued an order in early January 2025
1 The preparation of a FOAH from the September 24, 2024, hearing
occurred in parallel to the preparation of the FOAH from July 11, 2024. The
September 24, 2024, FOAH and the proceedings to obtain it are only relevant
to this issue to the extent that there are references made to it by the
attorneys in the proceedings related to the selection of the July 11, 2024,
FOAH and the sanctions request related to those FOAH proceedings.
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directing Teresa to provide the court with a copy of the FOAH issued in
connection with the July 11, 2024, hearing.
Since no FOAH from that hearing had yet been entered by the time this
court issued its order, the appellate court order triggered additional events
and proceedings in the trial court. According to a declaration filed by
Teresa’s attorney, upon receipt of this court’s January 2025 order directing
Teresa to submit a FOAH in order for the court to allow her appeal to
proceed, the attorneys began communicating again about a proposed FOAH
for the July 11, 2024, hearing. The attorneys, however, continued to disagree
on the language for the formal written order and apparently planned to
submit their competing draft FOAHs to the court. How they would do so,
however, became the subject of further dispute.
On January 6, 2025, Teresa’s attorney communicated a plan to submit
a joint cover letter and both proposed FOAHs to the judge. The draft of the
cover letter counsel shared with Stephen’s attorney included Teresa’s
arguments for selecting her proposed FOAH and a reference to her attorney’s
declaration with additional argument, and a space where Stephen’s attorney
could insert Stephen’s argument as to why his proposed FOAH was a more
accurate representation of the court’s oral orders than Teresa’s. The
following day Stephen’s attorney asked for copies of the documents referenced
in the draft letter, such as the transcript and exhibits. Teresa’s attorney
provided those documents the same day, January 7. Then, on January 8,
2025, having not yet heard from Stephen’s attorney, Teresa’s attorney
submitted a copy of the competing proposed FOAHs under a single cover
letter from him, alone, to the court’s business office. The letter stated as
follows:
“I request the court enter the following:
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“a. One of two FOAH drafts of the hearing of July 11, 2024;
“b. The draft of the FOAH of the hearing of September 24,
2024.
“Counsel have met and conferred without success. A proof
of electronic service of this letter and the contents described
herein, is filed herewith.
“Enclosed with this request is the Declaration of William
M. Henrich, with one exhibit ‘A’.
“Lodged with this request are the following:
“a. The transcript of the July 11, 2024 hearing (Lodged
Exhibit ‘A’);
“b. The minute order of July 11, 2024 (Lodged Exhibit ‘B’);
“c. The transcript of the May 20, 2024 hearing (Lodged
Exhibit ‘C’);
“d. Mr. Henrich’s draft of the FOAH of July 11, 2024
(Lodged Exhibit ‘D’);
“e. Mr. Zarin’s draft of the FOAH of July 11, 2024 (Lodged
Exhibit ‘E’);
“f. Petitioner’s draft of the July 24, 2024 FOAH (Lodged
Exhibit ‘F’).
“Mr. Henrich’s unresolved objections to the July 11, 2024
FOAH prepared by Mr. Zarin (Lodged Exhibit ‘E’), are set
out in detail in his declaration filed herewith, and are
summarized as follows:
a. Exhibit ‘E’ unnecessarily abridges the reasoning for the
court’s order;
b. Exhibit ‘E’ fails to address the court’s rulings on the
objections in the Response.
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“Mr. Henrich does not object to entry of the FOAH of
September 24, 2024, as drafted, but requests that the
FOAHs from both hearings be entered at the same time.
“Thank you for your consideration of this request.”
After receiving notice that Teresa’s attorney had moved forward
unilaterally to submit the competing draft FOAHs, Stephen’s attorney filed
an ex parte motion to have the matter of selecting a FOAH heard on shorted
time. In an accompanying declaration, Stephen’s attorney explained that he
was moving for ex parte relief because the parties could not reach an
agreement on the wording of a FOAH, and Teresa’s attorney had provided
the court with their competing draft FOAHs under a cover letter that
included only Teresa’s position as to the problems with Stephen’s draft
FOAH. He explained that he and Teresa’s attorney had originally agreed
they would submit a single cover letter that included both parties’ positions
as to the differences between the competing FOAHs and their competing
arguments as to which FOAH the court should select. Stephen also
requested sanctions under Family Code section 271, based on his need to
move ex parte to ensure the court did not mistakenly adopt Teresa’s draft
FOAH without hearing Stephen’s arguments. Counsel estimated that
Stephen would incur $5,000 in attorney fees for the additional ex parte
litigation.
In response to Stephen’s ex parte requests, Teresa’s attorney explained
that he had “dropped at the clerk’s office” Teresa’s “pleadings for entry of a
FOAH [in a circumstance] when the parties cannot agree[ ] between two
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competing FOAHs, in compliance with the procedure mandated by California
Rule of Court 5.125(e)(3).”2
To address Stephen’s ex parte requests, the court set a hearing to
consider the competing draft FOAHs for February 6, 2025, and determined
that Stephen’s request for sanctions would be heard that same day. In a
subsequently filed request for order seeking section 271 sanctions, Stephen’s
attorney also asserted sanctions were appropriate because “[Teresa] and her
counsel have not operated in good faith in resolving the preparation and
finalization of the Findings and Order After Hearing for the proceeding
hearing on July 11, 2024, which [Teresa’s] counsel was initially ordered to
prepare. Their actions have caused continued frustration in overall case
settlement . . . . [Teresa] and her counsel’s untrustworthiness in this specific
instance serves as another example of their highly contentious and no holds
barred litigation strategy.” In a responsive declaration, Teresa’s attorney
disagreed, asserting the following:
“As to both FOAHs, both attorneys failed to comply with
Rule of Court 5.125, the statutory procedure for judicial
decision between comp[ ]eting FOAH drafts, Mr. Henrich as
2 Subdivision (e)(1) of rule 5.125 requires that parties who have been
unable to agree on one party’s proposed FOAH “meet and confer” within 10
days of the objecting party serving the objections and a proposed alternative
order, and, depending on the result of this meet and confer process, proceed
in one of two ways. If the parties reach agreement, they must submit the
proposed FOAH to the court within another 10 days. (Id., subd. (e)(2).) If
they continue to disagree, however, each party is provided 10 days to submit
to the court and serve on each other certain documents, which include that
party’s proposed FOAH, copies of the transcript and/or minute order from the
hearing, as well as a cover letter that includes specific information regarding
the competing FOAHs and certain details of the meet and confer process.
(Id., subd. (e)(3).)
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to the FOAH of July 11, 2024, and Mr. Zarin as to the
FOAH of September 24, 2024. Respondent [i.e., Teresa]
attempted to comply with Rule of Court 5.125, on January
8, 2025. In response, on January 9, 2025, Petitioner sought
an ex parte resolution of the competing FOAHs.”
Teresa’s attorney also repeated later in the declaration that Teresa had
“attempted to comply with Rule of Court 5.125 on January 8, 2025.”
The court proceeded with the hearing to select and enter a FOAH and
Stephen’s attorney fee request on February 6, 2025. With respect to the
question of Stephen’s request for section 271 sanctions, the court’s minutes
from that day indicate Teresa’s attorney asserted that he was only “specially
appearing as he was not properly served” with the sanctions request papers.
The court then awarded $3,000 in attorney fee sanctions to Stephen, noting
that “[Teresa’s] attorney declined to participate” at the hearing.
In early April 2025, Teresa’s attorney filed a motion to vacate the
February 6 sanctions order, and the court set a hearing to address the motion
to vacate for May 6, 2025. Teresa made the request pursuant to Code of Civil
Procedure section 473, subdivision (b), based on “reasonable surprise,”
explaining that service had not been properly made 16 days in advance of the
hearing on the sanctions. After hearing the matter, the court agreed with
Teresa’s position, vacated the sanctions order and reset the motion to be
heard the following month on June 10.
Teresa filed another responsive pleading before the June 10 sanctions
hearing. In it she asserted that she and her attorney “have operated in good
faith to resolve the preparation and finalizing of the FOAH of July 11, 2024.”
She further declared that the “court considered the competing versions,
provided by my attorney with a proper cover letter pursuant to the Rule [i.e.,
rule 5.125], and then adopted [Stephen’s] attorney’s version with changes
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thereto requested by my attorney.” Teresa also submitted a points and
authorities document in opposition to Stephen’s sanctions motion. In that
document, she stated that the noticed sanctions request “is based on the
claim that [her] attorney, William Henrich, acted in a way that increased
litigation costs a frustrated settlement efforts.” Teresa acknowledged that
under section 271, a court may order one party to pay the other party’s
attorney fees “if their actions made it harder to settle the case or increased
the cost of litigation.” She also emphasized that “[a] ‘cover letter’ is a term of
art used in CRC 5.125,” and specifically set out that in such a cover letter,
“one is expected to list various details, with the major detail being a
statement as to why your proposed FOAH is correct and why the other’s
FOAH is incorrect.” According to Teresa, “[t]he intent of CRC 5.125 is that
each attorney submits his own declaration or letter setting out the differences
in the competing FOAHs, and thereby argues, in writing, for or against the
competing versions.” Teresa also noted that her attorney had “never
prepared a joint cover letter for Rule 5.125.” Finally, Teresa argued that “the
submission of CRC 5.125 filings separately, instead of [jointly by both
attorneys],” did not cause “extra li[ti]gation or work,” and thus the $5,000 in
attorney fees requested could not be tethered to her attorney’s conduct in
filing his own separate cover letter.
At the hearing on June 10, 2025, the attorneys and the court discussed
whether there had been an agreement to submit a joint letter that was
violated, whether the requirements of rule 5.125 had been met, whether the
failure to meet those requirements necessitated the filing of an ex parte
motion to have the matter decided as opposed to the filing of a separate cover
letter, and whether sanctions would be appropriate even if the rule’s
requirements were not met. The court inquired, for example, “So, Mr.
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Henrich, doesn’t the rule [of court] require that the cover letter lay out the
dispute so the court can highlight what the disputed issues are? I guess the
fear that [Stephen’s counsel] is expressing would be that if I just got this
cover letter [from you] and it doesn’t lay out what the dispute is or what his
position is, then I more likely than not would have signed it if he didn’t come
in ex parte.”
The court asked Stephen’s attorney to refer the court to the rule of
court that “outlines the contents of the letter that’s supposed to be submitted
for competing FOAHs.” Counsel cited rule 5.125(e)(3)(C), which provides that
“[i]f the parties fail to resolve their disagreement after meeting and
conferring, each party will have 10 calendar days following the date of the
meeting to submit to the court and serve on each other . . . ¶ . . . [a] cover
letter that explains the objections, describes the differences in the two
proposed orders, references the relevant sections of the transcript or minute
order, and includes the date and results of the meet and confer conferences.”
Counsel pointed out that Teresa’s cover letter did not include the dates
or results of the meet and confer conferences and failed to describe the
differences between the two proposed orders that it attached. Stephen’s
attorney explained that he would have no way of knowing how the court
might handle the matter, which effectively forced him to move ex parte to
ensure that his client’s view about why his proposed FOAH was more
accurate would be heard. The court agreed, asking Teresa’s attorney to
address opposing counsel’s argument that “he had to come ex parte and he
couldn’t leave your January 8th letter unresponded to because there was a
real fear that I would just sign the FOAH because there was nothing in this
letter that set forth his position or even gave the court a heads-up that there
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were competing FOAHS or arguments or that he had a problem with your
FOAH.”
Teresa’s attorney acknowledged that he did not “explain[] the
objections” or “describe[ ] the differences in the two proposed orders,” but
asserted that he should not be forced to make opposing counsel’s argument
for him, and opposing counsel could have filed his own letter within the 10
days provided for in rule 5.125.
Although Stephen’s attorney had argued that Teresa’s attorney had
breached an agreement they had reached by submitting his own cover letter
with the two competing FOAHs but without waiting to allow Stephen’s
attorney to prepare his argument for why Stephen’s FOAH should prevail,
the court believed it did not need to find the existence of an agreement that
had been breached, because even in the absence of an agreement, Teresa’s
failure to comply with rule 5.125 had increased Stephen’s litigation costs:
“[W]hat happened was that you [Mr. Henrich] put forth a
cover letter to the court on January 8th that doesn’t comply
with rule [5.125(e)(3)] subdivision (C). It doesn’t tell the
court that there’s an ongoing dispute. It doesn’t lay out the
differences in the two FOAHs, which was required.
Because you didn’t comply with that, whether there was an
agreement [between you and Mr. Zarin] or not [about what
the cover letter would say] really is irrelevant to this
argument. What happened on January 8th is you put this
letter forth that then necessitated Mr. Zarin having to come
ex parte to make sure that his side of the argument was
heard. Whereas if you . . . had complied with subdivision
[(e)(3)](C), that wouldn’t have been necessary. So there’s
an additional cost [Stephen had to pay] related to him
having to come ex parte to put his side of the events before
the court. It’s minimal. I mean it’s not $5,000, Mr. Zarin,
to come ex parte. It’s an hour, it’s a couple hours preparing
the ex parte application.”
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The court determined that the “reasonable cost of an ex parte
application is $1,500” and awarded that amount to Stephen as section 271
sanctions. And in the FOAH the court adopted after the hearing, the court
made a written finding “that [Teresa] did not follow California Rules of Court
Rule 5.125 which thereby necessitated [Stephen] to incur unnecessary
litigation costs.”
II.
DISCUSSION
Teresa raises two contentions on appeal to challenge the trial court’s
sanctions order, issued under section 271. First, she argues the court’s
sanctions order “rests on an unpleaded theory and violates notice
requirements.” (Boldface and capitalization omitted.) Second, Teresa asserts
there is insufficient evidence to support the court’s “conclusion that the
Declaration of Appellant’s Attorney did not comply with rule 5.125(e).”
A. General legal standards applicable to section 271 sanctions
Under subdivision (a) of section 271, “the court may base an award of
attorney’s fees and costs on the extent to which any conduct of each party or
attorney furthers or frustrates the policy of the law to promote settlement of
litigation and, where possible, to reduce the cost of litigation by encouraging
cooperation between the parties and attorneys.” “Sanctions under section
271 are committed to the discretion of the trial court, and will be reversed on
appeal only on a showing of abuse of that discretion, that is ‘only if,
considering all of the evidence viewed more favorably in its support, and
indulging all reasonable inferences in its favor, no judge could reasonably
make the order.’ ” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507,
1524.) “ ‘We review any factual findings made in connection with the award
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under the substantial evidence standard.’ ” (Parker v. Harbert (2012)
212 Cal.App.4th 1172, 1177 (Parker).)
A. Teresa Had Notice That Compliance with Rule 5.125 Was at Issue
Teresa contends she had insufficient notice that her attorney’s failure
to comply with rule 5.125 would be the basis for the court’s decision to award
attorney fee sanctions. She further contends that the lack of notice left her
without an opportunity to properly address this “theory” of sanctions. She
asserts this violated due process as well as the requirement of notice set out
in section 271, subdivision (b).3 We disagree.
Due process in the context of an attorney fee sanctions award under
section 271 requires a party be given notice and an opportunity to be heard
before a court imposes the sanctions. (In re Marriage of Petropoulos (2001)
91 Cal.App.4th 161, 178.) The notice should specify the authority relied upon
and advise of the grounds and conduct on which sanctions are to be based.
(In re Marriage of Quinlan (1989) 209 Cal.App.3d 1417, 1421–1422.)
In Teresa’s view, because Stephen did not specifically assert that her
attorney failed to properly follow the requirements of rule 5.125 in his
request for sanctions, she was unaware that the court might impose
sanctions based on a lack of compliance with the rule. But Teresa too-
narrowly frames Stephen’s sanctions request. The question raised by
Stephen’s request was whether, in the course of attempting to obtain a signed
FOAH in the midst of disagreement between the parties, Teresa and her
3 Subdivision (b) of section 271 provides: “An award of attorney’s fees
and costs as a sanction pursuant to this section shall be imposed only after
notice by the requesting party or the court to the party against whom the
sanction is proposed and opportunity for that party to be heard is provided by
the court.”
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attorney acted in a manner that frustrated the policy in favor of settling
litigation and reducing the cost of litigation by encouraging cooperation.
(§ 271.) Thus, the question at issue was, more broadly, whether any of the
conduct connected with the submission of the two competing FOAHs under a
cover letter that presented only one party’s arguments had increased the
litigation costs in this matter by essentially forcing Stephen to move ex parte
regarding the FOAH selection.
And in this context, Teresa asserted as early as January 10, 2025, that
her attorney had done nothing that could have caused Stephen to move ex
parte for consideration of the competing FOAHs because her attorney “had
attempted to comply” with rule 5.125 two days earlier by submitting the
competing FOAHs by way of his cover letter. Thus, from the very beginning of
this sanctions dispute, Teresa was relying on her attorney’s compliance with
rule 5.125—the very rule that she is currently asserting was unfairly raised
by the trial court sua sponte—to undermine Stephen’s claim that she and her
attorney had caused him increased litigation costs.
Teresa then again relied on her attorney’s asserted compliance with
rule 5.125 in her “Points and Authorities in Opposition to [Stephen’s] RFO for
fees Pursuant to Family Code § 271,” filed May 28, 2025. There, Teresa
stressed that her attorney’s decision not to file a joint cover letter “did not in
any way deprive [Stephen] of his ability to participate in the selection of the
FOAH [regarding the] July 11[, 2024,] hearing” because her attorney had
selected an “alternate methodology” that was “consistent with the statewide
procedure of CRC 5.125.”
Thus, long before the hearing on June 10, 2025, Teresa was not only
aware that compliance with rule 5.125 was relevant to the question of
Stephen’s requested sanctions, but she repeatedly relied on her proclaimed
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compliance with the rule as a defense to the sanctions request. By continuing
to assert compliance with rule 5.125, Teresa guaranteed that the issue of her
compliance or noncompliance with the rule was a foundational issue for the
court to consider in these sanction proceedings. In light of this, Teresa
cannot reasonably claim that she was wholly unaware the trial court would
want to consider whether she sufficiently complied with rule 5.125 so as to
avoid the imposition of sanctions.
Moreover, the arguments at the hearing confirmed that the question of
whether Teresa’s attorney’s cover letter complied with rule 5.125(e)(3)(C) was
fundamental to assessing whether counsel’s approach effectively forced
Stephen to expend additional litigation costs. They also demonstrate that
Teresa had an opportunity to address the compliance, as well as argue that
noncompliance was not sanction-worthy conduct. In other words, what
occurred at the hearing supports the conclusion that Teresa was not only
aware of the rule 5.125 compliance issue, but she was continuing to rely on
purported compliance with the rule to avoid sanctions and thus had adequate
opportunity to address the issue.
For example, Stephen’s attorney at one point during the hearing noted
that Teresa’s attorney’s cover letter did not mention the agreement they had
had to submit a joint letter, and that it also “makes no mention of when we
had this meet and confer . . . [and] they said, well, Mr. Zarin had ten days.
How would the court know that? How would the court know when that ten
days was up to then enter the FOAH[?]” When the court asked Teresa’s
counsel to respond, he described the relevant timeline of events and stated
that he told Stephen’s attorney “I’m not going to draft your objections, but
why don’t we do what’s always done in rule 5.35 and[.]125[, which] is that
you prepare your argument for or against the FOAH and I do the same.”
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Teresa’s attorney then argued that his letter was in “exact compliance with
the Rule of Court.”
The court, though, did not appear convinced that “exact compliance”
had occurred, asking, “[D]oesn’t the rule require that the cover letter lay out
the dispute so the court can highlight what the disputed issues are? I guess
the fear that Mr. Zarin is expressing would be that if I just got this cover
letter and it doesn’t lay out what the dispute is or what his position is, then I
more likely than not would have signed [your version] if he didn’t come in ex
parte.” Teresa’s attorney then posited that the court would not “sign things
immediately under the rule, you wait ten days.” The court countered, “But I
do that when there’s a letter that says we don’t agree on these five different
phrases, this is my version, this is his version. . . . But if I just get a letter
like the one you sent on January 8th, it’s hard for me to be able to make out
exactly what the dispute is and I don’t see anywhere in there where you lay
out what his position is.” Teresa’s attorney argued he was not “responsible
for making [Stephen’s] argument.”
The court and the attorneys then discussed the “contents of the letter
that’s supposed to be submitted for competing FOAHs.” The court reviewed
the precise language of rule 5.125 and said, “So 5.125(e)[(3)](C) says a cover
letter that explains the objections, describes the differences in the two
proposed orders. That’s what I was looking for here. I don’t see that in your
January 8th letter, Mr. Henrich.” And later, after some argument about the
substance of the competing FOAHs, the court returned to the issue: “[H]old
on. I’m looking at (e)[(3)](C)[,] a cover letter that explains the objections,
describes the differences in two proposed orders. So you didn’t do that - -.”
Teresa’s attorney rejoined, “I already said why I didn’t.” To which the court
said, “I know. But you didn’t do that, so he is left with no option other than
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to come ex parte to make sure, hey, wait a minute, there’s a competing
version of these. There’s two sides of the argument, let me get my side in
front of you. I mean I don’t know what you’d expect him to do - -.” Teresa’s
attorney then tried to assert that the “extra litigation” Stephen contended
was caused by Teresa’s attorney’s purported breach of agreement was based
on something that was never an agreement, and the court explained, “I don’t
think you guys had a specific agreement as to what the cover letter was going
to say. I think you guys had an agreement, though, that the cover letter
would certainly comply with subdivision (C) [of rule 5.125(e)(3)] and set forth
the competing version or at least highlight for the court what the differences
are as required by the [rule]. And when you didn’t do that in your letter, he
was left with no other option other than to come ex parte and put his
arguments before the court.”
Teresa’s attorney eventually asked for clarification as to whether the
court was “disregarding [his] declaration as part of the cover letter.” There
was some discussion about how the letter and the separate declaration, both
of which had been “dropped,” were not presently in the court’s possession; the
court asked why the documents were not provided in a lodgment. Teresa’s
attorney claimed he did not know “that the issue here was whether or not
anyone complied with rule 5.125(e)[(3)](C),” despite having relied on
compliance with that rule multiple times to assert nothing he did caused
Stephen to file an ex parte motion. The court explained that the cover letter
did not even indicate that the separate declaration would set out the
differences in the competing FOAHs: “You put in your January 8th letter
[‘]Mr. Henrich’s unresolved objections to the July 11th FOAH prepared by Mr.
Zarin are set forth in detail in the declaration filed herewith.[‘] . . . So you
tell me in [your letter that] you’re not setting forth his version or laying out
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the differences in the two FOAHs [in your declaration], that’s not how you
characterize your declaration in your January 8th letter. If your letter had
said hey Mr. Zarin’s position - - or the differences in the two FOAHs are set
forth in the attached declaration, even if we couldn’t find the declaration,
that would give me some indication that you complied with rule
5.125(e)[(3)](C) so that he wouldn’t have to come in ex parte, but that’s not
what your letters says and I don’t have the declaration [because it was
dropped and not lodged].”
After further argument, the court broached the question whether
noncompliance with rule 5.125(e)(3)(C) was, on its own, conduct worthy of
sanctions. Teresa’s attorney argued:
“Rule 5.125 does not require me to make his argument.
And he had ample opportunity to do so. That you would
sign it immediately would be your error, not mine. And if
he was so concerned about that, remember, please, you did
not sign his FOAH. So there’s no - - there’s not only no
harm, but the ex parte [hearing on the competing FOAHs]
was what you said you wanted. . . . I don’t know what else
to say in terms of the compliance with rule 5.125, except for
the record, I’ll request a continuance so I can respond to
that as a sanctionable act, but you’re right. If it’s a
sanctionable act, let’s say you’re right, my letter combined
with my declaration did not comply with the rule, that’s
fine. That’s a legal question. But the question is so what.
If I violate the law by following in a procedure incorrectly,
is that 271? Because there’s many examples in this case of
that happening. And so if this is an example, if he can get
how many hours you want to grant for an ex parte hearing
that - - for an ex parte hearing as a sanction for my letter - -
somehow my letter, as you said, not conforming with the
rule 5.125, an unnoticed claim. Then all right. You can do
that. I’m just saying that becomes the standard in this
case. And . . . I’ll just be asking that it be enforced. So
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there’s far more egregious acts than this that have come
into play and this seems like the most minor of all.”
Our review of this record, the parties written submissions and the
arguments made at the hearing reveals that Teresa had sufficient notice and
an opportunity to respond to the concern that her attorney’s noncompliance
with rule 5.125 led to Stephen filing an ex parte motion in response. Teresa
plainly understood that compliance with rule 5.125 could and would shield
her from accusations of unnecessarily increasing litigation costs; she
repeatedly relied on compliance with the rule to contest Stephen’s request for
sanctions. She could not have been surprised that a demonstration of
compliance with rule 5.125 was relevant to the sanctions motion at hand.
In addition, Teresa was not prevented from arguing that the conduct at
issue did not warrant section 271 sanctions. She had multiple opportunities
to demonstrate how her submission met the requirements set out in rule
5.125, as well as multiple opportunities to argue that sanctions were not
warranted for noncompliance with the rule. In our view, this record does not
reveal a failure of notice or lack of opportunity to respond to questions about
her compliance with rule 5.125 and whether lack of compliance justified the
imposition of sanctions.
B. Substantial Evidence Supports the Trial Court’s Decision
In the alternative, Teresa contends that the court’s finding that her
attorney’s “CRC 5.125(e) submission” was insufficient under rule 5.125(e) is
not supported by substantial evidence. We also disagree with this contention.
At the hearing, the court described its findings and decision as follows:
“The letter you submitted [i.e., the cover letter to which the competing
FOAHs were attached] didn’t comply with 5.125(e)[(3)](C), it didn’t set forth
there was a disagreement, it didn’t set forth any information as required by
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the [rule]—[and because it did not set forth this information, the submission
of this noncompliant letter] required Mr. Zarin to come in ex parte. The
reasonable cost of an ex parte application is $1,500.” As relevant here, a trial
court’s factual findings made in connection with its exercise of discretion are
reviewed under the substantial evidence standard. (Parker v. Harbert (2012)
212 Cal.App.4th 1172, 1177.)4
Rule 5.125 sets out the procedures attorneys are to follow with respect
to the submission of attorney-drafted FOAHs. The subdivision on which the
trial court relied is (e), “Objections to proposed order after hearing.” (Rule
5.125(e).) As previously explained, that subdivision of rule 5.125 requires the
parties to “meet and confer” within 10 days of the objecting party having
served his or her objections to the proposed order of the opposing party, along
4 In our view, the question whether an attorney’s submission to the court
complied with the standards set out in a court rule is most accurately
understood as a mixed question of law and fact. “ ‘Questions of fact concern
the establishment of historical or physical facts; their resolution is reviewed
under the substantial-evidence test. Questions of law relate to the selection
of a rule; their resolution is reviewed independently. Mixed questions of law
and fact concern the application of the rule to the facts and the consequent
determination whether the rule is satisfied.’ ” (Haworth v. Superior Court
(2010) 50 Cal.4th 372, 384.) Nevertheless, some mixed questions may be
considered to be primarily one of fact or of law: “ ‘If the pertinent inquiry
requires application of experience with human affairs, the question is
predominantly factual and its determination is reviewed under the
substantial-evidence test. If, by contrast, the inquiry requires a critical
consideration, in a factual context, of legal principles and their underlying
values, the question is predominantly legal and its determination is reviewed
independently.’ ” (Ibid.) Because the question Teresa raises goes to the
nature of the evidence the trial court looked to in deciding that she and her
attorney did not comply with the relevant rule, we agree with Teresa that the
substantial evidence test is the appropriate standard of review for assessing
her appellate claim.
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with his or her alternative proposed order. (Rule 5.125(e)(1).) If the parties
reach an agreement at this point in the process, the rule requires them to
provide the mutually agreed-upon proposed FOAH to the court within 10
days of the meeting. (Rule 5.125(e)(2).) But, as is relevant here, when the
parties remain unable to resolve their disagreements over their competing
proposed FOAHs, then “each party will have 10 calendar days following the
date of the meeting to submit to the court and serve on each other” certain
listed documents. (Rule 5.125(e)(3).) The required documents are:
“(A) A proposed Findings and Order After Hearing (FL-340)
(and any form attachments);
“(B) A copy of the minute order or official transcript of the
court hearing; and
“(C) A cover letter that explains the objections, describes the
differences in the two proposed orders, references the
relevant sections of the transcript or minute order, and
includes the date and results of the meet and-confer
conferences.” (Rule 5.125(e)(3)(A)–(C), italics added.)
A review of Teresa’s attorney’s cover letter to the court, which had
attached both Teresa’s and Stephen’s proposed FOAHs, reveals substantial
evidence to support the trial court’s assessment about that cover letter and
whether it complied with rule 5.125(e)(3). The cover letter stated that the
parties’ attorneys had “met and conferred without success.” However, it did
not include the date of the parties’ unsuccessful conference. This date is
necessary for a court to be able to assess whether the parties have complied
with the 10-day requirement for submitting the documents listed in
5.125(e)(3) and to provide the court with the starting point for calculating
when adoption of a proposed FOAH can be completed. Stephen’s attorney
explained that he moved ex parte out of concern that the lack of this
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information left open the possibility that the court would not wait the
requisite 10 days before selecting one of the FOAHs.
Teresa’s attorney’s cover letter also did not “explain[ ] the objections” to
Stephen’s proposed FOAH,5 nor did it include a description of the
“differences in the two proposed orders” or “reference[ ] the relevant sections
of the transcript or minute order.” (Rule 5.125(e)(3)(C).) Rather, the letter
states that “Mr. Henrich’s unresolved objections to the July 11, 2024, FOAH
prepared by Mr. Zarin (Lodged Exhibit ‘E’), are set out in detail in his
declaration filed herewith, and are summarized as follows: [¶] a. Exhibit ‘E’
unnecessarily abridges the reasoning for the court’s order; [¶] b. Exhibit ‘E’
fails to address the court’s rulings on the objections in the Response.” This is
the extent of the substantive portion of the January 8, 2025, cover letter.
Thus, the cover letter itself was a sufficient basis for the trial court to find
that rule 5.125(e)(3)(C) had not been satisfied.
Teresa suggests, however, that the information the court faulted her for
not putting in the cover letter was instead sufficiently addressed in her
attorney’s declaration, which was apparently submitted—or “dropped” in the
5 The letter did include two lines “summariz[ing]” counsel’s unresolved
objections to Stephen’s proposed FOAH, stating Stephen’s version
“unnecessarily abridges the reasoning for the court’s order” and “fails to
address the court’s ruling on the objections in the Response.” These
statements do not explain the objections, nor do they suffice to describe the
differences in the two orders. They also do not reference the relevant sections
of the transcript or minute order.
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court’s business office6—along with the cover letter. As a result, rather than
argue that the information included in the cover letter was sufficient under
the rule, Teresa’s evidentiary argument on appeal rests on her assertion that
“[t]he court did not review the Declaration of Appellant’s Attorney before
making its finding.”7 She complains, for example, that “[i]n the absence of
examination of the document, the determination of noncompliance is
unsupported by substantial evidence.” But rule 5.125(e) does not request or
contemplate the submission of a separate, additional document beyond a
“cover letter” that sets out the listed items. The rule appears to be intended
to provide the court with a single document where it may easily find and
access all of the information relevant to its decision-making. And, in the trial
court’s view, by not complying with the rule’s requirement of a cover letter
providing the necessary information, Teresa’s submission left significant
room for error or confusion on the part of the court. The court thus viewed
Stephen’s attorney’s concern about possible error or confusion as reasonable,
6 The issue of “lodging” documents versus “dropping” them came up
multiple times throughout the hearing. This was a point of concern to the
court, given that the lodging of the documents would have better ensured
they were accessible to the court and did not get lost or go missing.
7 Teresa also relies on what appears to be a quote from the trial court as
well as a factual assertion about what occurred at the hearing as further
argument in this portion of her brief, but she fails to provide appropriate
record citations to support these assertions. An opening brief must, among
other things, provide a summary of significant facts limited to matters in the
record and include record citations in support of factual assertions. (Cal.
Rules of Court, rule 8.204(a)(1)(C), (a)(2)(A), (a)(2)(C).) Factual statements
that are not supported by references to the record may be disregarded by a
reviewing court. (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947.)
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and as having thus led Stephen’s attorney to believe he needed to file an ex
parte motion to ensure his client’s interests were not overlooked.
Further, there was no indication in the cover letter that the court could
review the declaration to find the required information, either. The trial
court pointed this out at the hearing, explaining that if the cover letter had
contained some language indicating that the separate declaration included a
description of the differences between the FOAHs as well as the other
information required by the rule, it would have “give[n] [the court] some
indication that you complied with rule 5.125(e)[(3)](C) so that [Stephen]
wouldn’t have to come in ex parte [due to concern that the differences had not
been flagged for the court], but that’s not what your letter says . . . .”8
In sum, a review of Teresa’s attorney’s cover letter of January 8, 2025,
provides substantial evidence to support the trial court’s finding that Teresa’s
attorney had not complied with the requirements of rule 5.125(e)(3)(C).
Because the court’s factual finding in this respect is supported by the record,
and because there has been no argument that the court otherwise abused its
discretion in deciding to impose the $1,500 in sanctions, we affirm the trial
court’s order.
8 Although review of the declaration is not necessary to our conclusion
the court’s sanction order is supported by substantial evidence, a review of
that declaration reveals that it also did not comply with the dictates of rule
5.125(e)(3)(C). The declaration does not set out when the parties last met
and conferred but failed to reach an agreement, nor does it provide a
description of the differences between the two proposed FOAHs.
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III.
DISPOSITION
The sanctions order of June 10, 2025 is affirmed. Respondent is
entitled to costs on appeal.
KELETY, Acting P. J.
WE CONCUR:
CASTILLO, J.
BERMÚDEZ, J.
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