Paula Salinger Fraud on the Court - Violations of State Law, Court Rules, Attorney Ethics, Moral Turpitude - Woodruff, O'Hair, Posner & Salinger Inc Sacramento - California State Bar

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1 RESPONSIVE DECLARATION OF IN OPPOSITION TO PETITIONERS MARCH 28, 2012 MOTION

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Marriage of Sacramento C se No. Declaration of and Exhibits i ion to Petitioners Ma , Motion for Seven Orders.

I, declare as follows:

1. I am the respondent in the above-referenced matter, and the

responding party to petitioner request for seven

assorted orders. I have personal knowledge of the facts set forth

herein. If called as a witness in this matter, I could testify

competently to the facts stated below.

2. Filed concurrently with this declaration is a supporting

memorandum and a request for judicial notice. My response to

Petitioners motion, including the memorandum and request for

judicial notice are based on the authority, forms and instructions in

the California Practice Guide series published by The Rutter Group,

including Family Law (Hogoboom & King), Civil Procedure Before Trial

(Weil & Brown), Civil Trials and Evidence (Wegner et al.) and

Professional Responsibility (Vapnek et al.).

3. Petitioners attorney has worked as a family law paralegal

or attorney since 1992. I attach hereto as Exhibit A, as foundation

for my statement, a true and correct copy of a page from the

January/February 2007 issue of Sacramento Lawyer magazine containing

the curriculum vitae of Petitioners attorney, Paula D. Salinger.

4. Petitioners attorney was appointed as a temporary judge in

April, 2011. To become a judge pro tem, the attorney requested and

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3 RESPONSIVE DECLARATION OF S IN OPPOSITION TO PETITIONERS MARCH 28, 2012 MOTION

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statutes. Alternatively, Petitioners motion should be dismissed

until it complies with the court rules and statutes cited herein, and

in the supporting memorandum.

9. To effectively respond to Petitioners motion, to preserve

my rights of trial and appellate court review of the adjudication of

Petitioners motion, and to provide the basis for my sanctions

request, I must file with my response written evidentiary objections

under Code of Civil Procedure 436 and 431.10.

10. By law, my written evidentiary objections must cite to the

line number in Petitioners declaration containing the material

objected to. Cal. Rules of Court Rule 3.1354(b)(2) requires for each

objection reference to the line number of the material objected to.

Petitioners declaration was filed by her attorney without line

numbers in violation of Cal. Rules of Court Rule 2.108(4).

11. Without line numbers I cannot comply with Rule 3.1354(b)(2)

and cannot effectively identify for the Court the objectionable

material in Petitioners declaration.

12. If and when the declaration complies with Rule 2.108(4), I

will make line-by-line evidentiary objections under the applicable

Evidence Code sections including 210, 350 (relevancy), 352

(prejudicial, confusing issues, time-wasting), 403 (foundation),

702 (personal knowledge), 801, 803 (opinion), 1200 (hearsay) and

especially 780 (credibility, truthfulness).


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13. Under Family Code 2335 I also will object generally and

to specific portions of the declaration that contain fault evidence

in violation of 2335.

14. Petitioners declaration does not comply with Cal. Rules of

Court Rules 2.108(4)[line numbers in left margin]; 2.108(1)[lines

must be one and one half or double-spaced]; and 2.110 [bottom margin

footer]. The declaration also violates Local Rule 3.02 [failure to

comply with Cal. Rules of Court].

15. I also cannot file an effective and lawful supporting

memorandum until Petitioners declaration complies with Cal. Rules of

Court Rule 2.108(4). My memorandum will reference specific portions

of Petitioners declaration. Cal. Rules of Court Rule 3.1113(k)

requires such references to specify the paragraph or line number in

the declaration.

16. Petitioners memorandum contains non-specific, generic

references to prior proceedings and evidence, and no citations to the

record or to Petitioners declaration in violation of Cal. Rules of

Court, Rule 3.1113(b)[memorandum must contain statement of facts and

concise statement of the evidence relied on]. The memorandum appears

to misstate the record and to rely on false, misleading or omitted

material facts. I cannot effectively respond to, rebut or impeach the

references referred to in Petitioners memorandum until it complies

with Rule 3.113(b).


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17. Petitioners supporting memorandum also does not comply

with Cal. Rules of Court Rule 3.1113(k)[references to supporting

declarations must reference page, paragraph and line number]. The

memorandum appears to reference Petitioners declaration and exhibit

but does not provide the information required by Rule 3.1113(k).

18. As set forth in my supporting memorandum, all of

Petitioners prior pleadings two motions and five responsive

declarations have had significant and substantive errors which

appear on the face of the pleadings. Each of the filings has violated

state and local court rules and statutory law. The violations are

significant, relevant and not trivial.

19. All of Petitioners previous declarations and points and

authorities have contained false, immaterial or irrelevant material

facts, prohibited fault evidence, and omitted material facts, as

further set forth in the attached supporting memorandum.

20. The facts and circumstances surrounding Petitioners

defective filings suggest that the errors are deliberate and

calculated to gain a litigation advantage. The errors consistently

work to Petitioners advantage and my disadvantage. Based on the

training and experience of Petitioners attorney, it is improbable

that the errors are inadvertent.

21. It would be futile for me to ask Petitioners attorney to

conform the motion, declaration, and memorandum to Cal. Rules of

Court. The attorney has denied all past similar requests.


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22. For example, in October and November 2010 to the attorney I

requested that the orders prepared after the Oct. 27, 2010 hearing be

accurate. On October 29, 2010, in an email the attorney confirmed the

minute orders issued by the court were incomplete. Accurate orders

were critical to protect the rights of both parties because there was

not a court reporter at the hearing. The minute orders did not

memorialize that the Court had denied the attorneys request that a

sanctions assessment against me be assessed against my share of

community property. The court denied the request and ordered that the

sanction assessment be paid in monthly installments. The change was

relevant and material because - knowing that I was indigent and

without funds to make the first payment - the Court appeared to

intentionally structure the due date of the first payment to coincide

with the first settlement conference. The change logically inferred

an intent to use economic coercion to compel me to accept whatever

settlement terms were offered by Petitioner or face the threat of an

enforcement action, and potential additional penalties after missing

the first payment. Attached hereto as Exhibit C is a true and correct

copy of the Oct. 29, 2010 correspondence I received from the

attorney.

23. After in writing confirming that her sanction payment

request had been denied by the court, in a Nov. 18, 2010 letter the

attorney nonetheless refused to include the denial in the order after

hearing. In the letter, the attorney falsely stated that her proposed


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order after hearing accurately reflects the courts orders.

Attached hereto as Exhibit D is a true and correct copy of the Nov.

18 letter.

24. Also at the Oct. 27, 2010 hearing where no court reporter

was present, the Court sua sponte issued constructive rulings on four

matters in which I was the moving party but which were calendared for

the following month. The rulings were irregular in that the matters

were not on the calendar for Oct. 27, and Petitioner had yet to file

responsive pleadings in any of the pending matters. The Court did not

record the rulings in either of the two minute orders issued on Oct.

27. Petitioners attorney confirmed the rulings were made in

correspondence to me the next day. The correspondence included a

demand based on the sua sponte rulings - that I drop all pending

matters or she would file responsive declarations requesting

sanctions in each of the four proceedings. Attached hereto as Exhibit

E is a true and correct copy of the Oct. 28, 2010 letter I received

from the attorney.

25. The attorney also memorialized excerpts of the Oct. 27 sua

sponte orders in four responsive declarations - each with a request

for sanctions - which she filed on October 29, 2010.

26. Despite confirming that the sua sponte rulings were issued

in both her Oct. 28 letter, and in the four Oct. 29 responsive

declarations, the attorney refused my request that the order after

hearing accurately memorialize the rulings. The sua sponte rulings


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were material and relevant in that, among other things, they

reflected judicial bias, prejudgment, advocacy, other violations of

the Code of Judicial Ethics, and likely constitutional-level error by

the Court. The attorneys refusal to memorialize in the trial court

record the sua sponte rulings conveyed the appearance that she was

acting in concert with the Court to conceal the rulings.

27. In January, 2011 the attorney notified me that Petitioner

intended to move what the attorney characterized as my personal

belongings from the marital residence to a storage unit. On Jan. 7,

2011 in writing I notified the attorney that I did not consent to the

property being moved. A true and correct copy of my letter is

attached hereto as Exhibit F. As reflected on the exhibit, the

attorney received a copy of this correspondence via facsimile

transmission on Jan. 7, 2011.

28. Attached hereto as Exhibits G, H, I, J, & K are true and

correct copies of a series of letters from February, March and April,

2011 reflecting my repeated objections to Petitioners unauthorized

transfer of property to a storage unit. As the letters reflect, it

was ultimately revealed that the property transferred to storage was

in fact not my personal belongings. The transferred property

consisted of what Petitioner unilaterally decided would be my share

of community property. The attorney received copies of my letters via

facsimile on the dates recorded on each of my letters.


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29. More recently, on February 8, 2012, I wrote to the attorney

to verify if Respondent was still refusing to provide me with copies

of the household financial records she controlled and which I require

to complete my declarations of disclosure. In the letter, I also

asked the attorney about other matters, including if she expected to

continue her policy of requesting sanctions in all responsive

pleadings. A true and correct copy of my letter is attached hereto as

Exhibit L. As reflected on the exhibit, the attorney received the

letter via facsimile on Feb. 8, 2012.

30. In a response dated Feb. 9, 2012, the attorney wrote that I

would have to make a formal discovery request for the financial

records, and that she would continue to request sanctions in

responsive pleadings when appropriate. She provided similar,

adversarial and non-cooperative responses to my other inquiries. A

true and correct copy of the attorneys letter is attached hereto as

Exhibit M.

31. In light of the attorneys past and recent uncooperative and

adversarial conduct set forth above, it is reasonable for me to

assume, and I do assume, that any request by me to have her correct

the defective March 28, 2012 motion would be futile.

32. This declaration and response to Petitioners March 28,

2012 motion was filed at the earliest practicable time. As I have

done with all past filings, I emailed this responsive pleading to

Petitioners attorney ahead of formal service by priority U.S. Mail

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- 2 - RESPONDENTS SUPPORTING MEMORANDUM IN OPPOSITION TO PETITIONERS MARCH 28, 2012

MOTION FOR SEVEN ORDERS

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a veteran family law attorney and judge pro tem. (Declaration of in

Opposition to Petitioners March 28, 2012 Motion for Seven Orders (

Dec.), 3, 4 and Exhs. A, B (filed herewith).)

Respondent is indigent and involuntarily pro per because Petitioner is the

managing spouse, controls all community assets and income, and refuses to

release community funds to enable Respondent to retain counsel. (See RJN #6 p.

11 29; RJN #1 p. 8 27; RJN #2 p. 1 1; RJN #7 Exh. L.) Petitioner also refuses

to provide Respondent with copies of household financial records she controls and

that he requires to complete his declarations of disclosure. (See, e.g.,

Dec. 29, 30 and Exhs. L, M.) The record reflects that, since before the case was

filed in May 2010, Petitioner has carried out a scheme to misappropriate

community assets and dispossess Respondent of his property and possessory

rights. (See, e.g., Dec. 27-30 and Exhs. F-M.)

In the present proceeding, Petitioner seeks harsh and significant evidentiary

and monetary sanctions, and other relief. Petitioner also effectively requests the

Courts ex post facto acquiescence to her January 2011 unilateral division and

transfer of community property - her third and fourth unpunished violations of the

automatic temporary restraining orders since the case began. (See RJN #1) On its

face, Petitioners pleading is void. It does not comply with state and local rules of

court and other procedural statutes. The errors are substantive, non-trivial, and

unreasonably obstruct Respondents ability to respond to the motion.

It also is reasonable to infer that the errors are deliberate. The court rule and

statute violations work to Petitioners advantage and disadvantage Respondent.



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The pleading was drafted by a veteran family law attorney and judge pro tem. ( .

Dec. 3, 4 and Exhs. A, B.) The attorney has made virtually identical

errors in all prior court filings. The errors are calculated to gain a litigation

advantage by, inter alia, precluding Respondents ability to rebut, impeach or

challenge inadmissible evidence under Code of Civil Procedure 436 and 431.10,

and Cal. Rules of Court Rule 3.1354(b)(2)(written objections must state line

number of material objected to).

As set forth below, the strategy sets a trap where Respondent cannot lawfully

make written evidentiary objections - and the objections are therefore waived, and

the inadmissible evidence admitted. By law, under Code of Civil Procedure

437c(b)(5) and 437c(d) objections not made are waived. (See also Weil & Brown,

Cal. Prac. Guide: Civ. Pro. Before Trial (TRG-2011) 10:210 [failure to make

evidentiary objections waives right to challenge ruling based on inadmissible

evidence].)

Taken together with Petitioners prior defective court submissions, the

motion constitutes repeated and deliberate violations of court rules and is

therefore sanctionable conduct under Code of Civil Procedure 583.150 and

575.1. For the reasons set forth herein, Respondent respectfully requests that the

motion be dismissed with prejudice, denied or stricken as a sanction for

Petitioners serial violations of court rules and statutory pleading requirements.

Alternatively, the motion should be dismissed, denied or stricken until it complies

with the law.



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II. PETITIONERS CURRENT AND PRIOR VIOLATIONS OF COURT RULES STATUTES, and DECISIONAL LAW

A. Violations of Court Rules and Family Code 2335

1. Court Rule and Family Code Violations in the Present Proceeding

Petitioners pending motion for seven orders relies in large part on her six-

page declaration. The declaration was filed without line numbers in the left margin

in violation of Cal. Rules of Court (CRC) Rule 2.108(4) , is single-spaced in violation

of CRC Rule 2.108(1) and does not contain a footer, violating Rule 2.110. The

violations constitute a violation of Local Rule 3.02 [failure to comply with CRC].

The two declarations included with Petitioners motion contain false,

immaterial, or irrelevant material facts, and omit important material facts. ( .

Dec., 5.) The false, immaterial, irrelevant and omitted material facts are

dispositive to the orders requested by Petitioner. (Id. 6.) Removal of the

improper, inadmissible material and inclusion of the omitted material will render

both declarations insufficient to support the relief requested in the motion. (Id.).

The declaration submitted by Petitioner also contains fabricated, or

otherwise inadmissible misconduct, or fault evidence. (Id., 7.) Subject to

statutorily proscribed exceptions, the use of fault evidence is prohibited by Family

Code 2335. The impropriety and consequences of attempting to use fault

evidence is emphasized throughout the leading family law treatise. (See Hogoboom

& King, Cal. Prac. Guide: Family Law (The Rutter Group 2011) 2:34, 3:239-40;

6:823; 13:90; 13:121; 14:265.1.) Any attempt to sneak in fault evidence in

violation of 2335 is likely to result in strong reprimand and may even draw

monetary sanctions (Fam. C. 271). (Id., at 13:122, emphasis in original). The



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fault evidence recited by Petitioner does not fall within the statutorily proscribed

exceptions, which arise in domestic violence, child custody and specified support

matters. Family Code 3011(b)&(d), 3041, 4320(i),(m), 4325 and 6300. (See also

Hogoboom & King, 6:823.1-824.6; 11:195).

If the Court does not strike the motion with prejudice, to effectively respond

to Petitioners motion, to preserve his rights of trial and appellate review, and to

provide the basis for a sanctions request based on the use of prohibited fault

evidence and other grounds, Respondent will concurrently file with his response

written evidentiary objections under Code of Civil Procedure 436 and 431.10.

Dec., 9, 12.) In addition to general and specific Family Code fault

evidence objections, Respondent will make written Evidence Code-based

objections. (Id.). Cal. Rules of Court, Rule 3.1354(b)(2) requires for each objection

reference to the line number of the objectionable material. (See also Weil & Brown,

Cal. Prac. Guide: Civ. Pro. Before Trial (TRG-2011) 9:102.5 [reference to page and

line number required for evidentiary objections].) It is self-evident that until

Petitioners declaration is drafted in compliance with CRC Rule 2.108(4),

Respondent cannot make lawful and effective evidentiary objections.

In responding to Petitioners motion, Respondent also cannot file a

supporting memorandum which complies with Cal. Rules of Court until

Petitioners declaration complies with Cal. Rules of Court Rule 2.108(4).

Respondents memorandum will reference specific portions of Petitioners

declaration. ( . Dec., 15.) Cal. Rules of Court Rule 3.1113(k) requires

such references to specify the paragraph or line number in the declaration.



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In addition, the points and authorities filed with Petitioners motion do not

comply with Cal. Rules of Court Rule 3.1113(b) [memorandum must contain

statement of facts and concise statement of the evidence relied on]. The

memorandum appears to misstate the record and to rely on false, misleading or

omitted material facts, and makes no specific, identifiable references to the record.

Respondent cannot effectively respond to, and rebut or impeach the references

referred to in Petitioners memorandum until it complies with Rule 3.113(b) .

Petitioners memorandum also violates Cal. Rules of Court Rule 3.113(k)

[reference to supporting declarations must reference page, paragraph and line

number]. The memorandum appears to reference Petitioners declaration and

exhibit, but does not provide the information required by Rule 3.1113(k).

2. Court Rule and Family Code Violations in Prior Proceedings

a. The Defective September 2010 Motion to Compel

On September 24, 2010 Petitioner filed a motion to compel which relied on a

declaration with the same defects and violations of Cal. Rules of Court and the

Family Code as the current declaration. (See RJN #3, Dec. of p. 1-2.)

The motion to compel requested attorney fee sanctions. Petitioner did not file

an income and expense declaration as required by CRC Rules 5.118(b) and

5.128(b), and Local Rule 14.11(9).1 (RJN #3.) The circumstances - including the

training, experience and related conduct by Petitioners attorney - logically infer

1 The only arguable exception to the mandatory income and expense declaration requirement is where the declaration is already on file with the court from prior proceedings. See Burkle v. Burkle (2006) 144 Cal.App.4th 387; Marriage of Corona (2009) 172 Cal.App.4th 1205, 1227 [failure to file income and expense declaration excused where court had several years of income and expense declarations



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that the income and expense declaration omission was deliberate and calculated to

gain a litigation advantage by, inter alia, concealing from the Court the stark

economic disparity between the parties.

b. The October 2010 Defective Responsive Declaration

On October 14, 2010 Petitioner filed a responsive declaration with the same defects

and violations of court rules and the Family Code as the current declaration. (RJN

#4 Dec. of pp. 1-5.) The Family Code 2335 fault evidence

violations were particularly egregious in the Oct. 14 responsive declaration, and

Respondent attempted written evidentiary objections to the declaration. (RJN #5.)

The Court failed or refused to rule on the objections.

Taken together with Petitioners declaration in the current matter, where,

among other improbable claims, Petitioner claims to have discovered items which

are used to create explosivesamong Respondents personal property, the

content of the declarations show by Petitioner an unusual preoccupation with

bringing misconduct evidence before the court. The preoccupation should call

Petitioners credibility into question. (See, generally, Hogoboom & King, Cal. Prac.

Guide: Family Law (TRG 2011) 7:296.15 and 7:493 [in child custody context,

court may question credibility of party with general recalcitrance and

preoccupation to submit irrelevant fault evidence].)

B. Violations of Decisional Law

1. The Present Proceedings

prior to hearing at issue]. Until the present proceeding, Petitioner did not have an income and expense declaration on file with the court.



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Petitioners motion includes a request for $7,290 in attorney fee sanctions

and costs. The attorney fees accounting submitted by Petitioners trial court

attorney is unsworn. An unsworn attorney fee request is invalid. In re Marriage of

Duris and Urbany (2011) 193 Cal.App.4th 510, 515; In re Zeth S. (2003) 31 Cal.4th

396, 413-414, fn. 11. [It is axiomatic that the unsworn statements of counsel are

not evidence].

2. Prior Proceedings

a. The September 2010 Defective Motion to Compel

On September 24, 2010 Petitioner filed a motion to compel which included a

request for attorney fee sanctions which was unsworn (RJN #3.), and did not

include an income and expense declaration.

b. The Four October 2010 Defective Responsive Declarations

On Oct. 29, 2010 Petitioner filed four responsive declarations. Each

declaration requested attorney fee sanctions. None of the declarations included an

accounting of the attorney fees requested. None of the declarations included a

sworn accounting of the attorney fees requested (RJN #9, 10, 11, 12.), nor an

income and expense declaration.

III. PETITIONERS REPEATED AND DELIBERATE VIOLATIONS OF COURT RULES, STATUTES AND DECISIONAL LAW WARRANT SANCTIONS OR

OTHER RELIEF

Petitioners violation of court rules and statutory law are significant, relevant

and not trivial. Petitioners history of consistent, repeated violations strongly infers

that the violations are deliberate and calculated to gain a litigation advantage. The



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natural and expected consequence of the violations includes impeding and

obstructing Respondents due process and appeal rights.

Code of Civil Procedure, section 583.150 permits the court to dismiss an

action or impose other sanctions under local rules adopted by the court pursuant

to Section 575.1 or by the Judicial Council pursuant to statute, or otherwise under

the inherent authority of the court. Code of Civil Procedure, section 575.1 provides

for the presiding judge of each superior court to promulgate local rules designed to

expedite and facilitate the business of the court. Sacramento County Superior

Court Local Rule 3.02 states:

Failure to comply with any Local Rule or California Rules of Court may subject the party to sanctions pursuant to California Rules of Court, rule 2.30; Code of Civil Procedure sections 177.5, 575.2.

Petitioners clear violations of Cal. Rules of Court violate Local Rule 3.02. Rule 3.02

and Code of Civil Procedure 575.2 authorize the court to strike out all or part of

any pleading, or dismiss an action or proceeding or any part thereof for non-

compliance with local rules. CCP 583.150 permits a court to dismiss an action or

impose other sanctions for local and state court rule violations under the inherent

power of the court. CCP 436(b) permits a court to - at any time in its discretion

and upon terms it deems proper strike all or any part of any pleading not drawn

or filed in conformity with the laws of the state or a court rule. (See Weil & Brown,

Cal. Prac. Guide: Civ. Pro. Before Trial (TRG-2011) 9:1275-1282; 11:280.7a-

11:280.10a.) Violation or disregard of local rules is ground by itself for denial of a

motion. (Id. 9.9.1.)

Documents

Paula Salinger Fraud on the Court - Violations of State Law, Court Rules, Attorney Ethics, Moral Turpitude - Woodruff, O'Hair, Posner & Salinger Inc Sacramento - California State Bar