Case Number: SD032712 Hearing Date: May 05, 2016 Dept: 1

#7 – In re Marriage of Lyons (SD 032 712)

(1) Motion to Withdraw Stipulation

On February 11, 2016 this court considered a motion to withdraw stipulation appointing temporary judge Kenneth A. Black (Ret.), which motion was filed on November 30, 2015 by Petitioner Glenn Lyons. The court denied the motion, finding inter alia that the parties had contracted to waive any right to withdraw the stipulation except for CCP § 170.1 good cause, and Petitioner’s argument that Judge Black failed to act because Petitioner refused to pay his fees although Petitioner expressly agreed to be responsible for those fees did not constitute a CCP § 170.1 good cause challenge. The court also noted that there appeared no authority for Judge Black to request to withdraw based on Petitioner’s non-payment, and such withdrawal would violate Canon 6 of the Code of the Code of Judicial Ethics. The court therefore denied Petitioner’s motion; granted Respondent Lori Lyons’ opposition request for a one-year extension of Judge Black’s appointment (pursuant to LASC Local Rule 2.24(i)) to March 23, 2017; and granted Respondent’s request that Petitioner pay the balance due no later than March 1, 2016 and maintain a $5,000 credit balance with Judge Black at all times or face CRC 2.30 sanctions.

On March 29, 2016 Petitioner Glenn Lyons filed two separate motions to withdraw his stipulation for appointment of temporary judge, which stipulation had been entered March 23, 2015 for the one-year period until March 23, 2016, which period was extended by a year pursuant to the above-noted court order.

In the undated-cover-sheet filing, Petitioner submits the declaration of counsel Steven Fernandez, who declares that since the outset of the case Judge Black “has expressed a clear bias against Mr. Lyons,” as evidenced by cited comments from telephonic and in-person conferences held April 16, 2015; June 15, 2015; July 1, 2015; and July 10, 2015, and supporting documentary evidence. Counsel declares Judge Black has failed to hear and decide all the matters in the case. Counsel declares that on March 16, 2016 he sent a letter to Judge Black requesting withdrawal based on his bias as seen in those proceedings, which Judge Black declined on March 23, 2016; based thereon, Petitioner brings this motion. Petitioner argues that Judge Black’s bias and failure to act mandates his disqualification, pursuant to Canons 2 and 6(D)(2)(a) of the Code of the Code of Judicial Ethics, CRC 2.818(c)(2)(A) and (f); CRC 2.831(f). The primary example of alleged bias presented is Judge Black’s June 15, 2015 response to Respondent’s counsel’s question of when her motion for joinder of Glenn Lyons Constructions, Inc. to the action would be heard: “If you proceed with the joinder motion, the corporation will file a 170.6 and I will be out of the case.” Respondent then withdrew the motion. This is the cited evidence of bias.

In the separate filing dated March 22, 2016, Petitioner submits his own declaration and requests an evidentiary hearing to provide further offers of proof. Petitioner argues that the parties’ stipulation required him to pay Judge Black’s fees but was silent as to what would occur in the event he was unable to continue to pay these fees. He argues he is not financially able to pay these fees and should not have to liquidate his assets in order to do so, and it has now become cost-prohibitive to continue with Judge Black’s services. He indicates at the time he signed the stipulation he thought the matter would soon resolve at mediation, not continue for over a year and cause him to incur mounting litigation costs while Respondent Lori Lyons parties and malingers. Petitioner also indicates he is proceeding with a contempt proceeding (39 counts of custody contempt) in the assigned family law department and it would duplicate judicial resources for the regular courtroom to preside over his contempt proceedings and Judge Black to preside over the remaining custody issues. Petitioner sets forth at ¶ 20 a summary of his personal financial obligations, and indicates which of them he can and cannot meet. This filing contains only Petitioner’s declaration and exhibits, and no memorandum of points and authorities. Petitioner separately lodged his 2014 tax return and an income and expense declaration dated March 28, 2016.

Respondent filed a separate opposition to each motion. As to the first motion above, Respondent’s counsel Rachel S. Silverman declares it is unclear why Petitioner filed two separate motions and requests that the motion be denied because this motion mimics Petitioner’s motion that was denied on February 11, 2016 and Petitioner presents no new or different facts (as the facts stated by Mr. Fernandez all occurred prior to February 11, 2016), except for his March 16, 2016 letter – i.e., after the court’s ruling – to Judge Black requesting he withdraw, which Judge Black declined on March 23, 2016. Counsel declares there are motions pending Judge Black’s ruling only because Petitioner has violated the court’s order to pay the judge.

As to the second motion above, Respondent submits her own declaration denying Petitioner’s allegations about her partying behavior and arguing this exemplifies his abuse of the system because of his bitterness and done merely to harass her. Respondent declares Petitioner has paid money to a private investigator while claiming he cannot afford to pay the court-ordered costs; has threatened her that he will continue until she lives in poverty and the attorneys get all the money; and has backed out of two settlement agreements made in the case on May 5, 2015 and June 15, 2015 in mediations with Judge Black. Respondent argues that although Petitioner claims to only have a $7,292 monthly salary, he is self-employed with a very lucrative, high-end general contracting business and only quickly reduced his income back in February 2014 at the start of their divorce on the advice of his accountant; indeed, the interim forensic report estimated his personal income instead at $24,000+ per month, and he also does a lot of work for cash. Respondent declares that Petitioner has well over $300,000 in assets and over $2 million in equity in property (family home is worth over $1.7 million; Petitioner has $150,000+ in equity in a commercial building in Arizona and $150,000+ in equity in a home in Arizona) [evidenced at Exh. N. of Petitioner’s second motion noted above, the Schedule of Assets and Debts], and he only refuses to pay because he is not getting his way in the litigation and prefers to return to the public courtroom which does not have time to carefully review all the filings. Respondent declares that although Petitioner blames her for running up the attorney fees, in fact it is his litigation conduct that has done so (as seen in Judge Black awarding her $75,000 in attorney fees), and she asks the court to “put its foot down” to stop Petitioner’s behavior.

This court’s February 11, 2016 order discussed at length the very limited bases available for granting Petitioner’s request for this relief. At that time, the court considered Petitioner’s motion arguments of his inability to pay; Judge Black’s refusal to rule on several matters (because he was not being paid); and Judge Black’s bias (in that Petitioner argued he was being denied a “neutral tribunal”). Here in the current motion, Petitioner again argues inability to pay; Judge Black’s refusal to rule on several matters (because he was not being paid); and Judge Black’s bias (as seen in April 16, 2015; June 15, 2015; July 1, 2015; and July 10, 2015 conferences). Therefore, the court construes this as a motion for reconsideration of its earlier order.

CCP § 1008(a) allows the court to reconsider its prior orders if two jurisdictional requirements are met. The first requirement is that the moving party must seek this relief within 10 days after service of written notice of entry of the order at issue. The second requirement is that the moving party must show there are “new or different facts, circumstances, or law.” CCP § 1008(a). As part of this second requirement, the party requesting reconsideration must also provide a “satisfactory explanation for the failure to produce that evidence at an earlier time.” Okum v. Okum (1987) 195 Cal. App. 3d 176, 184. CCP § 1008 does not apply when the litigant simply disagrees with the Court’s ruling. Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1500. Unless the moving party meets both these jurisdictional requirements, the court cannot reconsider its earlier order. CCP § 1008(e).

Petitioner has filed this motion more than 10 days after service of the court’s earlier order. Also, Petitioner has presented no “new or different facts, circumstances, or law” sufficient for the court to reconsider its earlier order. The March 2016 letter exchanges with Judge Black do not constitute “new” information, in that Petitioner’s March 16, 2016 request for Judge Black’s withdrawal was based on those 2015 conferences and thus not “new” information, in that these underlying allegations of bias occurring in 2015 could have been presented to the court prior to the earlier February 11, 2016 hearing. To the extent Petitioner newly presents documentary evidence of his financial situation, he fails to explain the failure to produce this information earlier, in support of his first motion. Based on all this, Plaintiff has not complied with the requirements of CCP § 1008(a), and thus the court lacks jurisdiction to reconsider its earlier order.

Even if the court had jurisdiction to reconsider its earlier order, and even if the court were to consider the current arguments and evidence, the court would simply affirm its earlier ruling for all the reasons discussed in that lengthy order. The cited examples of Judge Black’s alleged bias do not appear objectively to demonstrate a bias justifying withdrawal. The submitted evidence of Petitioner’s assets does not evidence inability to pay Judge Black’s fees or the court-ordered costs. (See, e.g., Schedule of Assets and Debts dated April 7, 2014, submitted at Motion dated March 22, 2016, Lyons Dec., Exh. N.)

(2) Motion to Enforce Court Order and for Sanctions

As noted above, on February 11, 2016 inter alia this court granted Respondent’s request that Petitioner pay the balance due to Judge Black no later than March 1, 2016 and maintain a $5,000 credit balance with Judge Black at all times or face CRC 2.30 sanctions.

On March 21, 2016 Respondent filed a motion to enforce court order and for sanctions. Respondent’s counsel Rachel S. Silverman declares that Petitioner has failed to pay Judge Black as ordered, evidenced by a March 3, 2016 confirmation e-mail from Judge Black to this effect. Counsel declares that multiple motions brought by Respondent are currently pending before Judge Black because Petitioner refuses to pay, while Petitioner has scheduled a contempt citation against Respondent to be heard before Comm. St. George in the public courtroom that is not halted by his failure to pay Judge Black as ordered. Respondent asks the court to sanction Petitioner pursuant to LASC Local Rule 2.24(i), CRC 2.30, and Family Code § 271; compel Petitioner’s compliance pursuant to CCP § 128(a)(4); extend Judge Black’s appointment by the number of days from March 1, 2016 to the date Petitioner pays him; issue evidentiary sanctions; and order Petitioner to post a bond in favor of Judge Black, Respondent’s counsel, and Respondent.

Petitioner’s opposition argues only that this motion should be heard after the June 8, 2016 adjudication of Respondent’s two Order to Show Cause and Affidavit for Contempt matters filed March 21, 2016. Petitioner’s counsel Steven Fernandez declares that Petitioner cannot substantively respond to Respondent’s current motion due to the quasi-criminal nature of the two contempt actions, and also indicates that on April 21, 2016 Petitioner filed a motion for order withdrawing his stipulation for appointment of temporary judge, which is set for hearing on May 26, 2016 [i.e., a different motion than the above motion]. In his memorandum of points and authorities, Petitioner cites authorities holding that in a contempt proceeding the accused has the privilege against self-incrimination.

Concurrently, Petitioner filed a notice of $550.00 payment made to Judge Black via check dated April 19, 2016, based on Judge Black’s June 26, 2015 e-mail that there was a $550.00 balance at that time.

Respondent has evidenced Petitioner’s failure to pay Judge Black by March 1, 2016 as this court ordered. (Motion, Exh. A.) Petitioner’s counsel has only argued for a continuance based on Petitioner’s right against self-incrimination, which is irrelevant in light of Respondent’s submitted evidence that establishes Petitioner’s violation of the court order. The court also notes that Petitioner has only submitted the face sheets of Respondent’s contempt filings (Responsive Declaration, Exh. A-B), thereby failing to show the basis for those filings and failing to evidence that Petitioner’s response to this motion could in fact potentially lead to self-incrimination in the contempt proceedings, in that the contempt proceedings could be completely unrelated to the failure to pay the ordered costs. The court also notes that Petitioner himself has not asserted his right against self-incrimination, only his counsel has done so on his behalf.

Based on the above, Petitioner’s opposition request for a continuance is DENIED.

Respondent’s request for LASC Local Rule 2.24(i) and CRC 2.30 sanctions is GRANTED. On February 11, 2016 this court ordered Petitioner to pay the balance due to Judge Black and all requested retainers by March 1, 2016 and maintain a credit balance of $5,000 with Judge Black, following his failure to pay these fees as he agreed to do in the stipulation and order appointing temporary judge Kenneth A. Black (Ret.). At the time, the court noted that Petitioner had failed to evidence any inability to pay these ordered fees, and inferred that his failure to pay fees for nearly nine months was done expressly as the result of Judge Black ruling against him and with calculation that his nonpayment would lead to Judge Black refusing to act further and the case not being completed timely within the period of appointment. LASC Local Rule 2.24(i), incorporating CRC 2.30, provides for sanctions if a party violates the deadline for completion of the proceedings before the temporary judge. The court finds that Petitioner’s failure to pay these fees as ordered violates the court’s initial order that these proceedings be completed by March 23, 2016, and potentially also violates the current order that these proceedings be completed by March 23, 2017. The court finds that Respondent’s motion complies with CRC 2.30(c)’s notice requirement to seek sanctions against Petitioner. The court finds that Petitioner has been afford his CRC 2.30(c) opportunity to be heard, which he has declined to exercise through his counsel’s – not his own – assertion of the right against self-incrimination due to pending contempt proceedings in the case, without evidencing that his response to this motion would in fact implicate those rights. The court awards CRC 2.30(b) and (d) sanctions and reasonable attorney fees and costs incurred in connection with the motion against Petitioner and in favor of Respondent. Respondent’s motion does not set forth a basis for calculation of these costs, but the court finds that $1,500.00 is a reasonable sum for these sanctions, fees, and costs. Petitioner is ordered to pay this sum directly to Respondent’s counsel no later than June 1, 2016.

Respondent’s additional requests for relief are DENIED WITHOUT PREJUDICE at this time, subject to being considered at a later date if the complained-of conduct continues.