10 u 2 13 “4 1s 16 7 18 19 20 a 2 23 24 25 26 27 28 Matthew Shahon (SBN: 195043) Koestner & Shahon_ 13019 Bailey Street Whittier, California 90601 Tel: (562) 464.9793 Fax: (888) 420-3271 Attorneys for RESPONDENT SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES Case No.: 18WHFLO1382 In re the Marriage of POINTS AND AUTHORITIES OPPOSITION TO EX PARTE APPLICATION AND IN FAVOR OF PETITIONER: LEWIS PEDIGO ISSUANCE OF SANCTIONS AGAINST THE MOVING PARTY FOR ABUSE OF THE EX, and PARTE PROCESS RESPONDENT: KARINA PEDIGO Hearing Date: 1.2723 Time: 08:30 Dept: 123, Responding party requests a denial of the ex parte orders pursuant to CRC § 5.151 and CRC § 3.1206, as well as an order for attorney's fees and other appropriate sanctions purusant to CRC § 5.14 and Family Code Section 271. I. Pomts AND AUTHORITIES A. REQUIRED PLEADINGS The court may, of course, issue emergency orders when they are appropriate, and the California Rules of Court have an established protocol for making appropriate applications. (CRC § 5.151) According to the rules, the purpose of a request for emergency orders is to address matters that cannot be heard on the court’s regular hearing calendar. (CRC § 5.151(b); emphasis added) In those cases, notice to the other party can be shorter to ensure that the court can make orders to “help prevent an immediate danger ot irreparable harm to a party or to the children involved in the matter” (CRC § 5.151(b\(1), of to “prevent immediate loss or damage to property subject to disposition in the case” (CRC § 5.151(b) (2)), of for certain procedural matters. In making such an application to the court, the applicant must make written request in a specified manner. (CRC § 5.151(0)). In general, an applicant must make an affirmative factual showing in a declaration containing ae POINTS AND AUTHORITIES OPPOSITION TO EX PARTE APPLICATION AND IN FAVOR OF ISSUANCE OF SANCTIONS AGAINST THE MOVING PARTY FOR ABUSE OF THE EX PARTE PROCESS10 u 2 3 4 15 16 ” 18 19 20 a 22 23 24 25 26 27 28 personal knowledge that demonstrates: (I) why the matter is appropriately handled as an emergency heating as ‘opposed to being handled on the regular calendar (CRC § 5.151(dX2)); the basis for an affirmative factual showing of irreparable harm, immediate danger or other statutory basis (CRC § 5.151(4\(2)}; and which fully discloses all previous applications on the same issue (CRC § 5.151(d)(3)), as well as a duty to disclosure how the granting of the order will result in the change in the current situation or status quo (CRC § 5.151(d)(4)). Failure to disclose may result in the award of attorney's fees and costs required to reinstate the status quo. (CRC §5.15104X4)). Failure to comply with all of the above must result in the denial of the ex parte application. B, DUE PROCESS CONSIDERATIONS ‘When making an ex parte application to the court, the Legislature was mindful that true emergencies sometimes require a reduced ability to give notice and an opportunity to be heard. Nevertheless, parties appearing at an ex parte hearing must serve the application on all other parties at the first reasonable opportunity. (CRC § 3.1206; emphasis added) Absent exceptional circumstances, no hearing may be conducted unless service has been made. (CRC § 3.1206; emphasis added) Handing copies of the pleading at the time of the scheduled hearing is inappropriate absent truly extraordinary exigent circumstances and should be the basis for a pro forma denial of ex parte relief. (C. SANCTIONS FOR VIOLATION OF THE EX PARTE PROCESS Ex Parte matters are intended for extremely serious matters, which unequivocally require immediate attention. They are not intended to be a substitute for preferential calendaring. By their nature, they are disruptive to schedules of the parties, opposing counsel, regularly scheduled matters in the department, and the court itself. Abuse of the system by failure to abide by the clear and unambiguous statutory requirements should be dealt with harshly. The court has the ability to impose reasonable monetary sanctions for violations of the Rules of Court in family law cases. (CRC § 5.14) This does not limit the courts ability to impose other sanctions pursuant to other statutory schemes, such as Family Code Section 271, but rather presents an additional basis for ensuring compliance with Rules of Court. (CRC § 5.14(c)) This power to sanction a party for non-compliance is. expansive to include the sanctioning of a party’s attorney, law firm or any other individual whose consent is POINTS AND AUTHORITIES OPPOSITION TO EX PARTE APPLICATION AND IN FAVOR OF ISSUANCE OF SANCTIONS AGAINST THE MOVING PARTY FOR ABUSE OF THE EX PARTE PROCESS10 u 2 13 4 15 16 v7 18 19 20 a 2 23 2 25 26 27 28 necessary to disposition of the case. (CRC § 5.14(b)(2)). All that is required is notice and an opportunity to be heard, specifying the applicable rule, which has been violated, and the conduct that violates the rule and an identification of the party against whom sanctions are sought. (CRC § 5.14(d)) In fact, the court can notice a sanctions hearing on its own motion. (CRC § 5.14(@) The entire statutory scheme has been identified above, granting the court a plethora of bases for the imposition of sanctions against the moving party and counsel. Additionally, Family Code Section 271 states in relevant part: “athe court may base an award of attorney's fees and costs on the extent to which the 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. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. (Family Code Section 2a}; emphasis added). “Sanctions under section 271 are appropriate whenever a party's dilatory and uncooperative conduct has frustrated the policy of promoting settlement of litigation and cooperation among the litigants.” (Tharp v, Tharp (2010) 188 Cal App.4" 1295, citing In Re Marriage of Feldman (2007) 153 Cal App.4" 1470, 1479.80, emphasis added). Moreover, Section 271, subdivision (a) authorizes sanctions to advance the policy of promoting settlement of litigation and encouraging cooperation of the litigants” and “does not require any actual injury.” ( Feldman, at pp. 1479-1480, 64 Cal.Rptr.3d 29, italics omitted.) Litigants who flout that policy by engaging in conduct that increases litigation costs are subject to imposition of attorney fees and costs as a section 271 tion. (In Re Marriage of Corona (2009) 172 CaLApp.4* 1205, 1225 citing In we Marriage of Petropoulas, supra, 110 Cal. HM Lsem ded) As will be more fully discussed below, Petitioner comes forward now with a non-emergency ex parte request to divide proceeds of the sale of the family residence. This is a reserved issue from the Judgment, as is the valuation and division of the family business, which was operating under the exclusive use and control of Petitioner at the date of separation. Discovery is pending against Petitioner, which is due on February 3, 2023. This case is not ready for any scheduled trial, much less an ex parte emergency hearing. Petitioner was notified of same by Respondent's counsel when the notice was given, and he was given the opportunity to revoke the notice or face sanctions. He oe POINTS AND AUTHORITIES OPPOSITION TO EX PARTE APPLICATION AND IN FAVOR OF ISSUANCE OF SANCTIONS AGAINST THE MOVING PARTY FOR ABUSE OF THE EX PARTE PROCESS10 u 2 13 “4 15 16 ” 18 19 20 a 22 23 4 25 26 27 28 elected to proceed and expose himself to sanctions. If his ex parte fails to have merit, he should be made to pay sanctions to prevent similar future conduct now that he is In Pro Per. Il. THE PRESENT MATTER The notice presented in this matter present absolutely no issue which identifies an “immediate danger” or “irreparable harm”, As no written application was presented with the notice, none can be addressed. The parties were married on August 23, 1997 and became separated on December 1, 2018, They were ‘married for 21 years and 4 months, a marriage of long duration under the law of the State of California. A Judgment! was filed on December 9, 2021 that dealt with a number of issues, including having a parcel of real estate sold with the proceeds held in trust by Petitioner's counsel (now former), reserving jurisdiction to divide them. The issue of the division of the parties’ community property concrete pumping business was specifically reserved for future adjudication. (Judgment; Page 4, Item IV.) On July 29, 2022, a Judgment on Reserved Issues dealt with other issues, but continued to reserve the issue of the parties’ business, as well as, spousal support, Respondent hired MATTHEW SHAHON to represent her in the remaining issues, and a Substitution of Attorney was served and filed (on 11-21-22). Respondent's attorney began working with Petitioner's attorney on the valuation and division of the family business. Respondent's counsel requested informal discovery of simple documents concerning the business, including tax returns and bank statements. After none were provided, on December 28, a formal Demand For Production of Documents was served on counsel for Petitioner, which are due on Febraury 3, 2023. + Respondent requests that the court take judicial notice of its file in this matter and incorporate the Judgment by reference as if stated fully. a POINTS AND AUTHORITIES OPPOSITION TO EX PARTE APPLICATION AND IN FAVOR OF ISSUANCE OF SANCTIONS: AGAINST THE MOVING PARTY FOR ABUSE OF THE EX PARTE PROCESS10 n 2 3 4 45 16 v7 18 19 20 a 22 23 24 25 26 27 28 Upon receipt of the formal discovery, counsel for Petitioner filed a Motion to Be Relieved as Attorney of Record, set for hearing on February 10, 2023 On January 18, 2023, Petitioner substituted his counsel of record out of the case and is now in Pro Per. Coinciding with that change in counsel, a formal Stipulation was entered by parties and counsel to transfer the remaining proceeds of sale from the real property from Petitioner's counsel's Attorney-Client trust account to Respondent's counsel’s Attorney-Client trust account. A check to accomplish same was delivered by Mr. SANCHEZ to KOESTNER & SHAHON on January 24, 2023. On the morning of January 26, 2023, Petitioner called counsel for Respondent and gave “ex parte notice” that a hearing would take place on Friday, January 27, 2023. When asked what constituted the emergency basis, Petitioner indicated that he had “waited 5 years for his money” and wants it now. It was explained to Petitioner that such a request did not serve as a proper basis for an ex parte under the Rules of Court of Code of Civil Procedure. He was afforded an opportunity to revoke the notice of face sanctions for wasting counsel for Respondent's time. He refused to revoke the notice. Therefore, without outstanding discovery to determine the cash flow and value of the former family business, Petitioner seeks an order that the court simply give him the funds held in trust. This is not a qualifying basis for relief and should be denied, I. CONCLUSION This gamesmanship must stop. The court should deny the non-emergency, non-compliant application for ex parte orders and award attorney's fees and any other appropriate sanction against the moving party and counsel as stated above for this obvious abuse of the courts, the litigants and the system. In order to stop all work and deal with this non-emergency ex parte hearing, counsel for Respondent has expended approximately 5 hours reviewing the court and case file, communicating with my client and witnesses, brief the issue and will 5 POINTS AND AUTHORITIES OPPOSITION TO EX PARTE APPLICATION AND IN FAVOR OF ISSUANCE OF SANCTIONS AGAINST THE MOVING PARTY FOR ABUSE OF THE EX PARTE PROCESS10 u 12 13 4 15 16 v7 18 19 20 a 22 23 2 25 26 27 28 have to deal with the result of the hearing. Counsel for Respondent bills at the rate of $400 per hour and seeks the sum of $2,000 as and for a sanction against Petitioner for his abuse of the ex parte system an frustration of settlement per Family Code Section 271, et seq, Respectfully submitted by Koestner & Shahon Date:__ (26-23 Qo Attorney for KARINA PEDIGO 6. POINTS AND AUTHORITIES OPPOSITION TO EX PARTE APPLICATION AND IN FAVOR OF ISSUANCE OF SANCTIONS AGAINST THE MOVING PARTY FOR ABUSE OF THE EX PARTE PROCESSPROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES. | am employed or reside in the aforesaid county. | am over the age of 18 and not a party to the within action. My address is 13019 Bailey Street, Whittier, California 90601. On January 26, 2023, | served the following documents described as OPPOSITION TO EX PARTE on the attorney for Alll Interested Parties in this action: By service on: LEWIS PEDIGO lewispedigo@icloud.com VIA MAIL SERVICE) | caused to be delivered by placing a copy of the above document, enclosed in a sealed envelope, and addressed by mail to the offices of the above addressee to the United States Postal Service, on that same day, with postage thereon fully prepaid at Santa Ana, California. | am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing an affidavit. (VIA PERSONAL SERVICE) | delivered by hand a copy of the above document, enclosed in a sealed envelope, to the offices of the above addressee. X__(VIA EMAIL) | emailed a copy of the above document to lewispedigo@icloud.com | declare under penalty of perjury that under the laws of the State of California that the foregoing is true and correct. Executed on January 26, 2023, at Whittier, California. MATTHEW SHAHON (Qe Type or Print Name Signature T PROOF OF SERVICE BY FAX