Family Law: Preemptive Sanction Against Future Conduct Not Allowable Because It Impedes The Ability Of Litigation To Defend Litigant’s Interests And Gives No Opportunity To Withdraw The Offensive Conduct

Preemptive Sanction Order Reversed, Although Court Of Appeal Was Sympathetic To What Family Law Judge Was Attempting To Do.

           In the acrimonious dissolution case of Marriage of Richards, Case No. G056626 (4^th Dist., Div. 3 Jan. 9, 2020) (unpublished), ex-wife continually interrupted the family law judge and filed 11 matters in one month, prompting the lower court to issue an OSC re sanctions which ultimately indicated that ex-husband would be awarded sanctions for having to oppose any future motions.  The 4/3 DCA, in an opinion authored by Presiding Justice O’Leary, reversed.  CCP §§ 128.5 and 128.7 only deal with an existing action, tactic, or filing, such that the lower court’s order did not properly allow ex-wife an opportunity to withdraw an offensive motion.  Besides that, fundamental rights were involved:  “We conclude a preemptive award unfairly impedes the ability of a litigant to raise a defense or take appropriate legal action in the case,” which was illustrated by the fact that not all of ex-wife’s motions had been frivolous in the past.