Marriage of Kahn (2013) 215 Cal.App.4th 1113 -
Don't Think You Can Get Away With Discovery Game Playing By Becoming
Or "How to Avoid Divorce Trance for Lawyers Who Represent Difficult
Litigants" (I.e., "Run!")
This is a fun case to report, since it carries with it the names of a number
of local attorneys, some of whom I have a high opinion of. It was released
on April 26, 2013 and I've finally found time to get back to it.
Note as of September 10, 2013 - portions of the decision discussed herein
have been decertified and stricken from the published decision. Therefore,
I upload the original decision here which you can otherwise no longer find. However, please note that the decision is now far more limited as citable
authority than it was originally.
The Palm Springs and Palm Desert area family law attorneys who are named
in this decision are:
- Kira L. Klatchko and Douglas S. Phillips, outstanding appellate lawyers
who came in on behalf of serial attorney litigant Robert S. Kahn, the
Appellant Husband, after the bells had already been rung at the trial
- Richard C. Houghton, also a smart attorney who represented the wife in
this case, Jessie A. Kahn, throughout the proceedings;
- Attorney Thomas M. Stefanelli, a very honorable and well-liked gentleman
who was Robert Kahn's attorney at the time Robert began the manipulative
legal odyssey that would wind up with his name forever being associated
with the textbook definition of "recalcitrant divorce litigant"
(and Stefanelli had the foresight to "run!");
- Attorney Bertrand Cottle, whom I do not know; and
Attorney B. Palmer Riedel, who runs a website called "AggressiveAdvocate.com" which website is probably what one day caught Robert's eye.
Hopefully if this website catches your attention, you'll have a different
impression of what you might attempt.
Kahn decision is lengthy, spanning twenty-seven pages as it outlines an egregious
fact situation on behalf of Robert - who sounds to have been filled with
much bitterness following the break-up of his 48 year marriage, and an
attitude of "make-me!"
Presumably, both Robert and Jessie are in their 70's or older. What
is clear for Jessie is that Robert wasn't going to give her an inch,
or a penny, of a significant community estate which Robert evidently controlled
at the time of separation (and which he claimed he'd given to his
girlfriend following the parties' separation). Evidently, neither
party had any separate property by this time. I have ceaselessly and recently
written over the years of the
EnlightenedDivorceBlog™ about the horrors of financial power imbalances that are intended to,
and often do have the effect, of wearing the less financially "out-spouse"
out - most recently in my Blog about a San Diego couple in
Marriage of Georgiou.
In the business, divorce lawyers refer to this as "starving the other
party out." It happens all the time, in part because family law judges
let obstreperous parties get away with it by hesitating to award significant
deterring monetary or evidentiary sanctions or to recognize that fiduciary
duties underpin every aspect of the California community property law
system - it takes a lot of money and staying power for family law litigants
to expose this conduct in ways that creates positive remedies in their
favor. Riverside Appellate Justice L. Richli alludes to these fiduciary
obligations in this recently published decision from the Fourth Appellate
District, Division Two, which perhaps will serve as a useful reminder
to our family court Indio bench officers.
The abbreviated summary fact version is this:
- Husband claimed the parties' CP assets had disappeared or were worthless,
either in discovery or in his Preliminary Declaration of Disclosure.
- Wife filed a motion for the appointment of a receiver, which was granted.
Robert refused to cooperate with the receiver's management of a Beverly
Hills building that Robert admitted to have an interest in, but which
he claimed operated at a loss. Indeed, Robert insisted his only income
was $570 from Social Security.
On April 23, 2009, Jessie's attorneys served basic
Family Law Form Interrogatories and a Request for Production of Documents. Robert was self-represented
at that time but the next day he hired Thomas M. Stefanelli. Stefanelli
requested and received an extension of time, advising he was meeting with
Robert and promising responses shortly. Undoubtedly, Robert refused to
cooperate with Stefanelli.
- On July 14, 2009, wife filed a motion to compel. Shortly thereafter, and
not surprisingly because Stefanelli is not a guy who will continue with
a dishonorable client, he substituted out of the case.
- No opposition was filed to the motion to compel. On August 19, 2009, Judge
Lawrence Best ordered Robert to respond within 30 days. The trial court
did not state that all objections were waived as a result of its order,
but per C.C.P. sections 2030.290(a) (interrogatories) and section 2031.300(a)
(document productions), all objections are deemed waived by operation
of law when there is no response to these forms of discovery.
- Robert remaining missing in action, ignoring the Court's order.
- On December 1, 2009, Jessie through Attorney Houghton filed a motion to
strike Robert's responsive pleading, which would have the effect of
making the case a default dissolution. On December 14, 2009, Robert hired
Attorney Bertrand Cottle. Cottle appeared at a hearing on December 17,
2009, assuring the Court that responses were forthcoming. Based upon that
representation, the hearing on the motion for terminating sanctions was
- Next, without responding, on April 13, 2010 Robert substituted Attorney
B. Palmer Riedel in place of Cottle.
- On December 17, 2009, the Court had appointed a receiver. On April 20,
2010, the receiver filed his reported that Robert had refused to turn
any books and records over, claiming a Fifth Amendment privilege and privacy
rights, and further stating that Robert had interfered with the receiver's
work with building tenants.
- In opposition to the continued motion for terminating sanctions, on April
23, 2010 through attorney Riedel Robert filed a declaration alleging that
he'd been unrepresented after Stefanelli fled the case until Cottle
came on board, and asserting he'd fallen down a flight of stairs in
July, 2009, by which he "injured" his back. Supposedly he was
"not ambulatory" until November 24, 2009. Gosh!
- Further, he claimed, the IRS was investigating him for back taxes amounting
to $250,000 (huh) and that if he had produced the records then his constitutional
rights to avoid self-incrimination with regard to IRS.
- Further, and I love this one, Robert claimed he'd actually verified
the required discovery responses in March, 2010 with Attorney Cottle but
that Attorney Cottle had "for some reason" failed to serve them.
I mean, if you gotta blame somebody, blame your last attorney, right?
- When Attorney Riedel realized that Cottle had not served the responses,
he served them "immediately". The appellate decision specifically
notes that Robert's declaration failed to attach those "responses".
- Jessie's Reply paperwork did attach those responses, which turned out
to be bogus. They contained a signature block for Cottle, but neither
Cottle or Riedel had signed off on them. Why would that matter? Robert's
"responses" to the interrogatories included objections that
had been waived by their untimeliness months before; objections must be
signed by attorneys, when a party has one. So too the responses to the
production demand. The un-objected to responses were themselves evasive
and useless. (Where have I seen this before?) Essentially, Robert's
"responses" were utterly worthless claiming, for instance, that
he had no documents responsive to any of the requests - Robert agreed
to produce one document in answer to 43 requests.
- On May 14, 2010, Robert filed by Attorney Riedel Points and Authorities
with a bunch of novel legal theories. These included (1) that Jessie's
motion was not supported by evidence; (2) that Robert "had valid
reasons for not timely" responding; (3) Robert had now responded;
and (4) terminating sanctions would violate due process. He actually had
a few valid points, as it turned out, at least for purposes for appeal
but maybe not on the next go-around.
- On July 15, 2010, the trial court hammered Robert finding "a total
lack of cooperation...." It granted Jessie's motion. Specifically,
the trial court struck Robert's responsive pleadings and entered his
default and it awarded $275,000 in monetary sanctions.
Justice Richli was not amused, although Robert's appeal essentially
succeeded. The sanctions award of $275,000 was set aside because Jessie's
pleadings had never specifically requested that amount, although she said
generally she was seeking money for Robert's breach of fiduciary duties.
That did create a due process issue. Moreover, the case was ordered sent
back to the trial court to determine whether Jessie should be allowed
to amend her pleadings to more specifically identify her breach of fiduciary
duty claims by way of amendment, which a strong inference that such a
breach of duty had been amply demonstrated. And the appellate decision's
reasoning will cry out to the trial court in favor of a big monetary spanking
While it seems unfortunate that these manipulations will go unpunished
Marriage of Kahn is a good reminder that litigants need to apprise the other side of what
remedy, including the amount of damages, they are seeking if they want
the trial court's decision in their favor to be upheld.
First, Justice Richli found that Robert's claims about the time he
was unrepresented weren't credible. "It must be remembered that
Robert didn't provide
any responses until a year after the original request.... He simply blew off
the discovery process." Ouch. "In any event, his propria personal
status is irrelevant. '[S]elf-represented parties are entitled to
no greater consideration than other litigants and attorneys." [Citation omitted].
Second, Robert's claims of injuries weren't credible, and if even
if they had been "he should have sought an extension of time, a protective
order, or similar relief. He should not have exercised self-help by unilaterally
postponing a response."
Third, Robert had complained that Jessie's requests were "supposedly
numerous and sweeping." Yet, "Robert ... had a fiduciary duty
of full disclosure regarding all community property assets and liabilities [Fam. Code section 1100(e)]." Justice Richli did not find the requests to be oppressive and
burdensome for a marriage lasting almost 50 years. "A couple of months
should have been plenty of time to response. And, again, if it was not,
Robert should have sought an extension." This is useful dicta for
those faced with setting up discovery motions in family law and divorce cases.
Fourth, Robert had submitted some responses that contained mostly objections
and had argued that therefore the original motion to compel was moot,
and that if Jessie didn't like those responses she should have filed
(at further substantial expense to her) another motion to compel upon
receiving them. Justice Richli dismissed that argument by noting that
the responses had not been signed by an attorney, as is required when
a party is represented and submits objections and "For this reason
alone, the trial court could properly disregard the responses as invalid".
Moreover, those objections had long before been waived by operation of
law as untimely, and "Robert had violated a court order to act by
a certain deadline."
Fifth, Justice Richli dismissed Robert's argument that a new motion
was required once a party to discovery responds to even one question.
"Obviously," J. Richli states, "this is absurd." Further,
the Fifth Amendment objections "appear invalid on their face."
They included objections to producing corporate and partnership records,
when the 5th Amendment doesn't apply to entities. Justice Richli continues
"It was reasonably inferable that Robert's attorneys
knew the responses were defective." Double-ouch. In fact, attorney Riedel
never himself submitted a declaration explaining what happened when the
Cottle responses came to light, after which attorney Riedel said he served
them "immediately". "In any event, ...., it failed to explain
why Reidel did not sign them. This procedure neatly allowed both attorneys
to avoid any responsibility for the content of the responses.... If Reidel
was willing to serve them, he should have signed them; if he was not willing
to sign them, he should not have served them. There was ample evidence
that Robert and his attorneys were playing fast and loose with the court."
However, in fairness to Palmer it does need to be said that Justice Richli
noted that Robert had failed (read: refused) to comply when represented
by Stefanelli and Cottle. "The trial court could reasonably conclude
that Robert was equally involved in Riedel's most recent failure to
comply with discovery, resulting in the default."
The rest of the reported decision is, as I've said, an important primer
on sanctions and fiduciary duty claims, which Jessie's attorney had
apparently not adequately set up by failing to identify both the nature
of the FD claims as well as the amount requested, so that Robert was on
notice of what he was facing. This is a good lesson. You must check the
right boxes on the Judicial Council forms, including the FL-100, because
the Court's power to later enter a default judgment will be limited
by how well they were given notice of the potential consequences. This
is very hard to predict at the inception of a case, when an attorney is
first retained, and indeed Justice Richli threw Jessie this bone: "Jessie
may actually prefer to have the default vacated so she can litigate her
claim for damages for breach of fiduciary duty in this action."
California Family Law is in disarray by reasons of its complexities, as
an interface between human emotions and reactivity and complex rules of
substantive law and procedure. It demands more than most attorneys can
reasonably offer, even the better ones.
But thanks to Justice Richli's sensitive and well-reasoned decision,
in the meantime, fiduciary duties are reaffirmed as alive and well in
Riverside County, California, family law and dissolution cases.
Thurman W. Arnold, III, C.F.L.S.