Failure to file

[mandelbrot007]

CA

We had a trial last week. Other than Minor child's school issue(public vs private), most of the issues are financial related. As per family court rules, we are supposed to file final disclosures 4 days prior to trial. I asked my attorney if it is mandatory and she said these disclosures are mandatory, failure to comply will result in sanctions. Only way to not to do this is by signing a mutual waiver. So I worked hard during my holidays on these disclosures to submit it before deadlines.

But the other side didn't file disclosures at all. Looking at the # of issues, court had given us 2 days of trial where the 1st day is used for settlement. Court appointed a senior counsel as a neutral to help us settle. As we were not in agreement on some financial issue, mediator mentioned to my attorney that the my ex didn't file disclosure. I remember my attorney mentioning that he will probably file it. In the heat of negotiations, I didn't think they were talking about the mandatory financial disclosure until I came home.

We settled some financial issues which I wouldn't have if they had failed to file something as important as this. As my ex is unreasonable and dragging this on for 3 years making me fight at every step with a TRO, child custody etc,.

I had strictly instructed my attorney, if we are going this far, to seek every source of advantages that makes our chances of winning much greater. I do not understand why she did not go after, moreover she didn't even inform me. This is withholding the information. If I had settled to her unreasonable terms which my attorney was insisting, I wouldn't even have come to know about this.

I send an email asking why I was not informed and if she will be seeking sanctions, she responded as follows:

We have 3 Options:

a. You are entitled to a continuance (which is the typical route, but I know you don’t want that)
b. I can amend to ask for sanctions, but they will just rush and get them done (as the mediator mentioned – that’s why she didn’t want to bring it up)
c. I can ask at trial for sanctions



This is absolutely a callous response. I do not want to seek continuance. If they do it after we file for sanctions, it's still after deadline. I think these deadlines are there for reason. I saw the Family code and it explains why disclosures are important and the courts consider it seriously.

What should I be responding my attorney with? I am pissed at attorney, given that we are dealing with family court, is it worth going hard on her. Digging this will leave everyone bitter. What would you do in my situation?

 

[stealth2]

What is your end goal?

 

[mandelbrot007]

Did the attorney cross the line of legal mal practice by not disclosing the key piece of imformation?

 

[mandelbrot007]

What is your end goal?

My end goal is to come out with an upper hand at trial. Use the sanctions as leverage. I am disappointed that attorney did not disclose this key piece of information before the beginning of the proceedings

 

[Zigner]

We settled some financial issues which I wouldn't have if they had failed to file something as important as this.

How can this be true? The disclosure didn't come in to play for you at all. Furthermore, please elaborate on what you mean by "file" in this case. The disclosures aren't filed with the court, the are simply served upon the other party and a proof of service is submitted to the court.

I had strictly instructed my attorney, if we are going this far, to seek every source of advantages that makes our chances of winning much greater. I do not understand why she did not go after, moreover she didn't even inform me. This is withholding the information. If I had settled to her unreasonable terms which my attorney was insisting, I wouldn't even have come to know about this.

Oh, so you didn't even settle after all? How were you harmed? Sanctions, even if awarded, won't make your chances of "winning" any greater.

I send an email asking why I was not informed and if she will be seeking sanctions, she responded as follows:

We have 3 Options:

a. You are entitled to a continuance (which is the typical route, but I know you don’t want that)
b. I can amend to ask for sanctions, but they will just rush and get them done (as the mediator mentioned – that’s why she didn’t want to bring it up)
c. I can ask at trial for sanctions



This is absolutely a callous response. I do not want to seek continuance. If they do it after we file for sanctions, it's still after deadline. I think these deadlines are there for reason. I saw the Family code and it explains why disclosures are important and the courts consider it seriously.

How was it callous? The court wants to see justice. If the other party submits the disclosures late, then you still got them, and that is the goal. Even if sanctions are imposed, they are likely to be nominal, and they won't have any affect on your case.

What should I be responding my attorney with? I am pissed at attorney, given that we are dealing with family court, is it worth going hard on her. Digging this will leave everyone bitter. What would you do in my situation?

I would seek therapy to help me get over my issues and realize that I need to look at this from less of a "I gotta stick it to her!" point of view and more of a "What's going to be best for EVERYONE involved here (particularly my kids)?" point of view.

 

[not2cleverRed]

CA

....
I send an email asking why I was not informed and if she will be seeking sanctions, she responded as follows:

We have 3 Options:

a. You are entitled to a continuance (which is the typical route, but I know you don’t want that)
b. I can amend to ask for sanctions, but they will just rush and get them done (as the mediator mentioned – that’s why she didn’t want to bring it up)
c. I can ask at trial for sanctions



This is absolutely a callous response. I do not want to seek continuance. If they do it after we file for sanctions, it's still after deadline. I think these deadlines are there for reason. I saw the Family code and it explains why disclosures are important and the courts consider it seriously.

What should I be responding my attorney with? I am pissed at attorney, given that we are dealing with family court, is it worth going hard on her. Digging this will leave everyone bitter. What would you do in my situation?

No. This is a direct response delineating the legal options, as your lawyer sees them. That is your lawyer's job. It is not your lawyer's job to hold your hand or wrap things in pretty bows... Your lawyer is not your therapist.

Also, please keep your posts together. As I've told you before.

https://forum.freeadvice.com/child-custody-visitation-37/motion-heard-634519.html

https://forum.freeadvice.com/child-support-98/hide-information-638847.html

https://forum.freeadvice.com/divorce-separation-annulment-36/hearing-639068.html

What would I do? I would come to the realization that there is no "winning" in Family Court, there is only moving on. I would do a cost/benefit analysis to see if what I think should happen, legally, is worth pursuing.

 

[HRZ]

Strictly as a layman ...your attorney did nothing wrong ...you seem to be Monday morning quarterbacking a replay .

I think your goals are inconsistent with " winning " and holding an upper hand is not per se winning ...do you want your attorney to "win" or to merely hold upper hand . You hired a legal gladiator ...now stop trying to tell the gladiator how to fight your cause . And moving on / forward / closure may be a better goal than " winning " ??

IF And that's a big IF there is some likely missing financial issue that would alter the outcome of something , that would a point to discuss with counsel now.

 

[stealth2]

My end goal is to come out with an upper hand at trial. Use the sanctions as leverage. I am disappointed that attorney did not disclose this key piece of information before the beginning of the proceedings

I'm really not sure how you consider sanctions to be "leverage". If sanctions are handed down by the court, they're handed down. Or do you want your lawyer to threaten the other side with possible sanctions being requested? Might work, might not. Most likely, the court will just move forward and order the disclosures be provided. No harm, no foul.

As to going after your lawyer? Great way to alienate him/her, and potentially have them file a motion of withdrawal.

At the end of the day, it is your job as the client to educate yourself to the best of your ability.

 

[latigo]

CA

We had a trial last week. Other than Minor child's school issue(public vs private), most of the issues are financial related. As per family court rules, we are supposed to file final disclosures 4 days prior to trial. I asked my attorney if it is mandatory and she said these disclosures are mandatory, failure to comply will result in sanctions. Only way to not to do this is by signing a mutual waiver. So I worked hard during my holidays on these disclosures to submit it before deadlines.

But the other side didn't file disclosures at all. Looking at the # of issues, court had given us 2 days of trial where the 1st day is used for settlement. Court appointed a senior counsel as a neutral to help us settle. As we were not in agreement on some financial issue, mediator mentioned to my attorney that the my ex didn't file disclosure. I remember my attorney mentioning that he will probably file it. In the heat of negotiations, I didn't think they were talking about the mandatory financial disclosure until I came home.

We settled some financial issues which I wouldn't have if they had failed to file something as important as this. As my ex is unreasonable and dragging this on for 3 years making me fight at every step with a TRO, child custody etc,.

I had strictly instructed my attorney, if we are going this far, to seek every source of advantages that makes our chances of winning much greater. I do not understand why she did not go after, moreover she didn't even inform me. This is withholding the information. If I had settled to her unreasonable terms which my attorney was insisting, I wouldn't even have come to know about this.

I send an email asking why I was not informed and if she will be seeking sanctions, she responded as follows:

We have 3 Options:

a. You are entitled to a continuance (which is the typical route, but I know you donÂ’t want that)
b. I can amend to ask for sanctions, but they will just rush and get them done (as the mediator mentioned – that’s why she didn’t want to bring it up)
c. I can ask at trial for sanctions

This is absolutely a callous response. I do not want to seek continuance. If they do it after we file for sanctions, it's still after deadline. I think these deadlines are there for reason. I saw the Family code and it explains why disclosures are important and the courts consider it seriously.

What should I be responding my attorney with? I am pissed at attorney, given that we are dealing with family court, is it worth going hard on her. Digging this will leave everyone bitter. What would you do in my situation?

I certainly agree that you have been poorly represented. However, you are mistaken in believing that the final declaration of disclosure statement is mandatory. It isn't. Unlike the preliminary declaration which is mandatory the final declaration can be waived by mutual consent.

And I suspect - what with your attorney voicing no objections over the absence of the ex's final declaration and allowing the settlement conference to proceed - the mediator was given the understanding that your attorney was waiving the need for a final declaration.

In this respect it appears to me that your attorney has been remiss in obeying Rule 3-500 of the California Rules of Professional Conduct, to-wit:.

"A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed."
___________________________

With reference to the itemized remedial options proposed by your attorney I have to seriously question whether she has even read the Family Code! As no where is there any mention of "you being entitled to a continuance"; nor "amending and asking for sanctions" (amend what?), nor "waiting until the trial to ask for sanctions" (at which time it would be too late to request compliance with 2105)

Anyway for what its worth I have attached the pertinent provisions of the Code remedying the failure to comply.
_______________________


California Family Code Section 2107 (In part)

"(a) If one party fails to serve on the other party a * * * * * * or a final declaration of disclosure under Section 2105, or fails to provide the information required in the respective declarations with sufficient particularity, and if the other party has served the respective declaration of disclosure on the non-complying party, the complying party may, within a reasonable time, request preparation of the appropriate declaration of disclosure or further particularity.

(b) If the non-complying party fails to comply with a request under subdivision (a), the complying party may do one or more of the following:

(1) File a motion to compel a further response.

(2) File a motion for an order preventing the non-complying party from presenting evidence on issues that should have been covered in the declaration of disclosure.

* * * *

(c) If a party fails to comply with any provision of this chapter, the court shall, in addition to any other remedy provided by law, impose money sanctions against the non-complying party. Sanctions shall be in an amount sufficient to deter repetition of the conduct or comparable conduct, and shall include reasonable attorney’s fees, costs incurred, or both, unless the court finds that the non-complying party acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(d) Except as otherwise provided in this subdivision, if a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment.

* * * * * * "

 

[Zigner]

I certainly agree that you have been poorly represented. However, you are mistaken in believing that the final declaration of disclosure statement is mandatory. It isn't. Unlike the preliminary declaration which is mandatory the final declaration can be waived by mutual consent.

Your statement is misleading and irrelevant. Our OP has NOT waived the final disclosures, which makes them mandatory.

 

[latigo]

Your statement is misleading and irrelevant. Our OP has NOT waived the final disclosures, which makes them mandatory.

Not so! Mandatory refers to something that is required, and not optional or subject to discretion.

Service of the preliminary declaration of disclosure (2104) is not subject to discretion nor optional hence it is mandatory.

Because service of the final declaration of disclosure (2105) is subject to discretion or optional in that service thereof can be "mutually waived" it can't be said to be mandatory or compulsory in the same sense that service of the preliminary declaration is compulsory.

Fini!

 

[Zigner]

Not so! Mandatory refers to something that is required, and not optional or subject to discretion.

Service of the preliminary declaration of disclosure (2104) is not subject to discretion nor optional hence it is mandatory.

Because service of the final declaration of disclosure (2105) is subject to discretion or optional in that service thereof can be "mutually waived" it can't be said to be mandatory or compulsory in the same sense that service of the preliminary declaration is compulsory.

Fini!

Not quite. It can be mutually waived upon the consent of both parties. If both parties do not agree, then it's mandatory. It's obvious, in this thread, that both parties do not mutually agree to waive it. As such it is mandatory in this case.

To even mention that it's not mandatory in this case is throwing a red herring out there, and God knows that our OP needs to focus.

 

[mandelbrot007]

I have decided to ask for sanctions at the trial. If it's awarded I will get some relief. Seem like I could not have used this as a leverage during settlement, which I thought I could. So I am gonna focus on the issues. We can close the thread.

The reason I wrote in terms of winning and losing is because of nature of one of the issues for trial which is school choice for child beginning KG from this year. Mom wants private school and I strongly feel regardless of tuition, child should go to public school. Our argument was that Private school is expensive and cannot afford the tuition cost where public school are free. They know this, so now she is offering to pick up the full tuition (she wants me to pay half of after school daycare, though the school do not differentiate). My attorney say our argument has become weak (at least as per my attorney) that we cannot make the cost argument is weak.

I strongly believe in public school, and almost all public schools in the city I live are great, there is no reason why our child will not do well at public school. The problem is I am not an expert to say which one is better, all I can say is what's unique about this public school that's tied to my address, some programs unique to school which may be beneficial, class size, saves commute time (which is an issue), diversity in races and socio economic backgrounds which is not there in the private school mother has picked.

Another thing she is throwing at me is that, the public school is overloaded and so there is a lottery for admission, so there is no guarantee that she will get in "home school" (not to be confused with homeschooling) so we should just send her to private school. But the fact is that it is a common issue with public school, and the school district always strive to keep the kid in home school by placing them back when space become available

I am concerned and I do not know how I can make sure that our child goes to public school

 

[stealth2]

I have decided to ask for sanctions at the trial. If it's awarded I will get some relief. Seem like I could not have used this as a leverage during settlement, which I thought I could. So I am gonna focus on the issues. We can close the thread.

The reason I wrote in terms of winning and losing is because of nature of one of the issues for trial which is school choice for child beginning KG from this year. Mom wants private school and I strongly feel regardless of tuition, child should go to public school. Our argument was that Private school is expensive and cannot afford the tuition cost where public school are free. They know this, so now she is offering to pick up the full tuition (she wants me to pay half of after school daycare, though the school do not differentiate). My attorney say our argument has become weak (at least as per my attorney) that we cannot make the cost argument is weak.

I strongly believe in public school, and almost all public schools in the city I live are great, there is no reason why our child will not do well at public school. The problem is I am not an expert to say which one is better, all I can say is what's unique about this public school that's tied to my address, some programs unique to school which may be beneficial, class size, saves commute time (which is an issue), diversity in races and socio economic backgrounds which is not there in the private school mother has picked.

Another thing she is throwing at me is that, the public school is overloaded and so there is a lottery for admission, so there is no guarantee that she will get in "home school" (not to be confused with homeschooling) so we should just send her to private school. But the fact is that it is a common issue with public school, and the school district always strive to keep the kid in home school by placing them back when space become available

I am concerned and I do not know how I can make sure that our child goes to public school

I agree with your lawyer that your argument is weakened by her offer to pay full tuition. The bolded may also be an issue - the argument I would make is that having the child placed in an "other" school and then moved to the "home" school is that it forces her to ... change schools.

What programs "might" be beneficial? Are they programs that you KNOW your child needs NOW? Does she need speech therapy, remedial skills, etc.? That's one thing. Quite another if you're talking about Enrichment-type programs.Those really are less compelling because.... well.... you can provide all of that yourselves, as parents. Art! Music! Fantastical Library! Sports! Foreign Languages! Your daughter is 5ish - unless she's a known prodigy in some specific area, the best you can do is expose her to all of those beneficial things yourself. She's too young to really know which areas she will enjoy or excel in.

There are also ways in which you can provide diversity in your child's life aside from school choice.

 

[mandelbrot007]

I agree with your lawyer that your argument is weakened by her offer to pay full tuition. The bolded may also be an issue - the argument I would make is that having the child placed in an "other" school and then moved to the "home" school is that it forces her to ... change schools.

If that is a concern, Can I say that I will move there, wherever the child is placed in order to avoid further changes. This is one of the reasons I didn't commit to buying a house, to find out where child goes to school

What could be the salient arguments in favor of public school? Can I not just say that school district is charged with the public good and it should be assumed to be acting in accordance with it's mandate. Then mom should prove somehow public schools have failed?