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Court of Appeal Restores 2014 $1,000 Per-Day Sanction
Accumulated Amount Was $8.76 Million a Year Ago, Under Estimate; Opinion Says Superior Court Commissioner Who Lifted the Order Had No Power to Do So Under Code of Civil Procedure §473(d) Because It Was Not ‘Void’
By a MetNews Staff Writer
The Court of Appeal for this district has reversed an order vacating a $1,000-a-day sanction imposed on a Palmdale family-medicine doctor based on his continuing disobedience of court orders, with the sanctions having mounted to $8.76 million as of March of last year, according to a Los Angeles Superior Court commissioner’s estimate.
Presiding Justice Judith Ashmann-Gerst of Div. Two authored the opinion, which was not certified for publication. The trial court, she said, confused an arguable “voidable” order with one that was “void.”
Commissioner Scott J. Nord, on March 21, 2022, vacated the sanctions imposed on April 11, 2014, by then-Los Angeles Superior Court Judge Carol Koppel, now retired. He reasoned that when the sanctions were announced by Koppel three days before she signed the order—at an ex parte hearing on physician David R. Jansen’s motion to compel Lynette A. Jensen to execute a quitclaim deed—there had been no forewarning of such an intended action.
“[E]verybody, obviously, is entitled to notice and an opportunity to be heard,” Nord explained at a March 8, 2022 hearing.
The commissioner acted in response to the ex-husband’s motion pursuant to Code of Civil Procedure §473(d), which provides:
“The court…may, on motion of either party after notice to the other party, set aside any void judgment or order.”
Appellant’s Contention
In the appellant’s opening brief, filed Jan. 19, attorneys S. Roger Rombro and Melinda A. Manley of the Manhattan Beach firm of Rombro & Manley LLP, representing the ex-wife, argued that the order was not void, saying:
“The trial court had subject matter jurisdiction in 2014 when the monetary sanctions were ordered. Accordingly, if for any reason that may be found that the trial court in 2014 had acted in excess of its jurisdiction, the order for monetary sanctions may be voidable.”
The brief also says:
“For Lynette, this appeal is not about payment of sanctions. Lynette recognizes that if the monetary sanction orders are executed, the sanctions will go to the County, and not to Lynette….Lynette also recognizes that the amount of the sanctions is now outrageous.
“Consequently for Lynette, although the narrow issues on appeal are the 2014, orders, the bigger questions are whether Lynette and the trial court may ever obtain closure of the marital litigation notwithstanding David’s oppositional conduct.”
Lancaster attorney Elke Gordon Schardt argued in the brief in support of David Jensen’s position that Koppel had acted “arbitrarily and capriciously” by making orders that were “not sought by the Respondent, nor prayed for in the ex parte application, nor the subject of a noticed hearing” and that Nord properly scuttled the orders.
Reversal Explained
Void orders may be wiped out at any time under §473(d), Ashmann said, but pointed out:
“[W]hen a judgment or order is merely voidable, a party is not entitled to relief under section 473, subdivision (d).”
She declared:
“The trial court’s April 11, 2014, order imposing sanctions against David was not void.”
That’s because the Los Angeles Superior Court at all times had fundamental jurisdiction over the parties, the presiding justice said. She wrote:
“In his motion to vacate the April 11, 2014, order, David raised several arguments in support of his contention that the sanctions order was flawed. However, he offered no legal authority or argument that those alleged errors gave rise to a void—as opposed to voidable—order. Likewise, in defending the trial court’s order on appeal, he still fails to explain, with legal authority and argument, why the trial court’s April 11, 2014, order was void. Nor could he. As set forth above, that order was at most voidable.”
Ashmann noted that David Jensen in 2014 unsuccessfully sought a writ in the Court of Appeal challenging Koppel’s April 11, 2014 order, was rebuffed, and failed to gain review in the California Supreme Court. She pointed to other actions he could have taken, if he had done so timely, and then tipped him off as to a path still open: seeking a trial court order based on an exercise of equitable powers, saying:
“Certainly a court has inherent power on equitable grounds to vacate an order when it is entered without due process….But there is no indication or argument here that the trial court resorted to its equitable powers when it granted David’s motion.”
The case is Marriage of Jensen, B320565.
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