Chacon v. Stephens, 2d Civil No. B165901 (Cal. App. 3/20/2008)

• Decision Date: 20 March 2008
• Docket Number: 2d Civil No. B165901
• Court: California Court of Appeals Court of Appeals
• Parties: FRANCISCO CHACON, Plaintiff and Respondent, v. JOI STEPHENS (CHACON), Defendant and Respondent. EUGENE J. ALBERTINI, Objector and Appellant.

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FRANCISCO CHACON, Plaintiff and Respondent, v. JOI STEPHENS (CHACON), Defendant and Respondent EUGENE J. ALBERTINI, Objector and Appellant.

2d Civil No. B165901

Court of Appeals of California, Second Appellate District, Division Six

March 20, 2008

NOT TO BE PUBLISHED

Appeal from the Superior Court of Santa Barbara County, No. SB164891, J William McLafferty, Judge.

Albertini & Gill, Eugene J. Albertini, in pro per, Appellant.

No appearance for Respondents.

YEGAN, J.

Attorney Eugene J. Albertini appeals from a March 27, 2003 order to pay $15,000 sanctions to Joi Stephens (Joi) and $6,543 sanctions to Francisco Chacon. (Code Civ. Proc., § 128.5, subd. (a).)¹ The trial court found that Albertini filed a frivolous petition to intervene on behalf of his client, Doctor Borko B. Djordjevic, in a marital dissolution action. We reverse because Albertini's client was not "a party" to the action. (Ibid.; Capotosto v. Collins (1991) 235 Cal.App.3d 1439, 1442.)²

Procedural History

In 1984 Joi Stephens (Joi) married Francisco Chacon (Chacon) while pregnant with John Thaddeus S. Chacon was not the biological father of the child.

Santa Barbara Action — Chacon Dissolution

Chacon filed a petition for marital dissolution in the Santa Barbara County Superior Court three years later. (Case No. SB164891.) After Joi signed a marital settlement agreement, a default judgment was entered July 22, 1987 with a status decree effective August 27, 1987.

Joi married Doctor Borko B. Djordjevic (Borko) on October 3, 1987.

In December 1987, Joi filed a motion to set aside the Santa Barbara judgment because it erroneously named Chacon as the father of John Thaddeus. The Santa Barbara Superior Court vacated the judgment and found that Chacon was not the father of John Thaddeus. Joi was ordered to prepare a judgment but failed to submit a judgment to replace the one previously vacated.

Indio Action — Borko/Joi Dissolution

Joi and Borko had one child, Alexandra, during their marriage. In 2002, Borko filed a petition for martial dissolution in the Indio branch of the Riverside County Superior Court. (Case No. INDO72196.) A status decree was issued and Borko was ordered to pay $4,505 a month child support plus attorney fees.

In 2003, Borko filed an ex parte motion to strike the pendente lite orders on the ground that Joi was still married to Chacon. Borko claimed his marriage was void and that Alexandra was legally the child of Chacon. The Indio court denied the motion on February 20, 2003.

Santa Barbara Action — Stipulated Nunc Pro Tunc Judgment

In the interim, Joi and Chacon stipulated to and received a judgment nunc pro tunc providing for an August 27, 1987 status decree. Borko petitioned to intervene, requesting that the court correct the judgment to reflect a different status decree date. (§ 387.)

Joi opposed the petition, joined by Chacon. Albertini filed a "Notice of Non-Opposition by Francisco Chacon to Borko's Motion for Leave to Intervene" stating that Chacon had filed no opposition papers. Albertini also submitted a proposed judgment bearing Chacon's name which reflected a new nunc pro tunc date.

The trial court denied the petition to intervene. Following a hearing, the court awarded Joi and Chacon sanctions. (Code Civ. Proc., § 128.5, subd. (a).)

Borko and Albertini appealed from the sanctions order. Borko's appeal was dismissed on January 7, 2008, after he filed a Chapter 7 bankruptcy petition. (In re Borko B. Djordjevic, M.D., U.S. Bankruptcy Ct., Cal. Central Dist., Riverside Division, Case No. RD 00-11619DN.)

Applicable Sanctions Statute

Albertini argues that the order must be reversed because sanctions were imposed pursuant to section 128.5 rather than section 128.7. Section 128.5 subdivision (b)(1) provides: "For purposes of this section," sanctions may by imposed for frivolous litigation including "the making or opposing of motions . . . only if the actions or tactics arise from a complaint filed, or a proceeding initiated, on or before December 31, 1994." In Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 812, our Supreme Court held: "Sanctionable `actions or tactics' are confined to behavior that arises from a complaint filed, or a proceeding initiated, prior to 1995. Conduct that arises from a suit commenced after December 31 1994, does not qualify as `actions or tactics' within the meaning of section 128.5(b)(1), so it furnishes no basis for an award of sanctions under section 128.5(a).)"³

Here the petition to intervene was filed in 2003. Although the Santa Barbara dissolution was filed in 1987 (i.e., before the section 128.5 sunset date), Borko was not a party to the action and could not be treated as a party until the trial court granted his petition to intervene. (See Hospital Council of Northern Cal. v. Superior Court (1973) 30 Cal.App.3d 331, 336; Corridan v. Rose (1955) 137 Cal.App.2d 524, 528.) Section 128.5 sanctions may only be imposed against a party or a party's attorney. (Rabbitt v. Vincente (1987) 195 Cal.App.3d 170, 174-175.) Section 128.5 "`does not authorize imposing sanctions against an attorney of a nonparty, nor does it contemplate imposing sanctions on an attorney who is not of record and is simply associated to a party through separate litigation pursued entirely in a foreign jurisdiction. [Citation.]' [Citation.]" (Capotosto v. Collins, supra, 235 Cal.App.3d at p. 1442.)

The trial court erred in imposing sanctions under section 128.5 rather than section 128.7. (See e.g., Levy v. Blum (2001) 92 Cal.App.4th 625, 638; In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1217 [sanctions noticed under section 128.7 does not permit imposition of sanctions under section 128.5]) The record further indicates that the safe harbor provisions of section 128.7, providing that a litigant has 21 days after notice to withdraw or correct the sanctionable conduct, were not followed. (§ 128.7, subd. (c)(1) & (2); Orange County Dept. of Child Support Services v. Superior Court, supra, 129 Cal.App.4th at p. 804.) "Adequate notice that sanctions are being considered is mandated by statute and the due process clauses of the federal (U.S. Const., 14th Amend.) and state (Cal. Const., art. I, § 7) Constitutions. [Citations.] Because of the significant differences between sections 128.7 and 128.5, a motion for sanctions under only the former does not provide a basis for imposition of sanctions under the later." (In re Marriage of Reese and Guy, supra, 73 Cal.App.4th at pp. 1219-1223.) The order imposing sanctions against Albertini is reversed. The parties shall bear their own costs on appeal.

We concur:

GILBERT, P.J.

COFFEE, J.

1. Unless otherwise stated, all statutory...