Filed 9/9/26 Marriage of Prince CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
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 exhusband 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 toonarrowly 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.