IN RE: Marriage of AGNES PENG and JOHN SU HSIEH. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

The trial court determined this dissolution action is about Agnes Peng's “deliberate, willful, and fraudulent campaign to steal [John Hsieh's] hard earned wealth, taking advantage of her control over [Hsieh] and exercising undue influence over him.”   After years of working, saving and investing, he had accumulated significant wealth, but during his marriage to Peng, Hsieh had lost three properties (one in Rosemead, one in New York and one in Taiwan), and had only $9.29 left in his bank account.   After repeated requests for continuances and delays as Peng substituted various attorneys and occasionally represented herself, the matter proceeded to trial in Peng's absence.

The trial court found Peng had submitted fraudulent and forged documents, found her guilty on three contempt charges, found the Rosemead and Taiwan properties to be Hsieh's separate property, and as a result of Peng's egregious breaches of fiduciary duty, awarded Peng's community interest in the New York property to Hsieh.   In addition, the court awarded Hsieh a total of $525,302.70 in funds Peng had misappropriated from Hsieh.   Peng appeals, asserting numerous claims of error, relying primarily on documents never presented to the trial court and which are not proper matters of judicial notice.   We affirm.

Hsieh filed a motion for sanctions for Peng's filing of a frivolous appeal.   We notified the parties we were considering imposing sanctions on Peng and her counsel pursuant to rule 8.276, subdivision (c), of the California Rules of Court, and Peng (though her counsel) filed opposition.   Because of the numerous deficiencies in Peng's appeal, including her assertion of multiple frivolous arguments, we grant Hsieh's motion, ordering Peng and her counsel to pay Hsieh and his counsel sanctions in the amount of $15,000.   In addition, we order Peng and her counsel to pay sanctions to the clerk of this court in the amount of $8,500.

FACTUAL AND PROCEDURAL SUMMARY

An “appellant must support all statements of fact in [her] briefs with citations to the record [citation] and must confine [her] statement ‘to matters in the record on appeal.’  [Citation.]”  (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29.)  “[I]t is counsel's duty to point out portions of the record that support the position taken on appeal.”  (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.)   It is not the proper function of the Court of Appeal to search the record on behalf of appellants or to serve as “backup appellate counsel.”  (Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545–546.)

Peng has failed to prepare a summary of the facts supported by citations to the record;  we will address the record in greater detail in connection with each of Peng's arguments.

According to the record, the marriage between Peng and Hsieh was registered in Taiwan in April 2001.   According to a declaration Peng submitted, before the marriage, she gave the property known as the Taiwan property to Hsieh as a gift because she loved him.  (Hsieh testified he had paid for it.)

In October 2001, Hsieh bought a 22–unit apartment building in Rosemead in a tax deferred exchange (IRC 1031) involving the sale of separate property he owned in Oakland.

In 2004, the parties jointly purchased a 9–unit apartment building in New York for $1.8 million, using Hsieh's separate property funds of $1,378,312.50 and a $499,000 loan made to both Peng and Hsieh by Asia Bank.

In a series of transactions, beginning in 2006, Peng obtained Hsieh's interests in all three properties through fraudulent representations, forged documents and fabricated claims.   For example, she claimed a tenant in the Rosemead property was pregnant with Hsieh's baby and was coming after him, and she insisted assets had to be transferred into her name.   She obtained signatures on documents by having Hsieh sign the last page without seeing the remaining pages and later presenting them with forged initials.   Because he trusted her, Hsieh signed blank checks, and gave her approximately $500,000 to pay off a loan against the New York property.¹  Ultimately, she “trapped” Hsieh in Taiwan by taking his passport and leaving him with no money and intercepted his calls and communications from his friends.   Although he had had little contact with his daughter Amy O'Keefe (co-appellate counsel) in recent years, Hsieh's daughter and her husband, both attorneys, became involved and assisted Hsieh after learning Peng had filed a petition for dissolution claiming entitlement to the Rosemead and New York properties (and making no mention of the Taiwan property).

The trial court was “initially disinclined” to accept Hsieh's claim Peng had kept him in Taiwan for eight months against his will but, after observing Hsieh's demeanor and judging his credibility, the court found Peng was able to subjugate his weaker personality to her own and impose her will on him until May of 2008, when with the assistance of his daughter and son-in-law, he learned of the transactions through which Peng sought to misappropriate his properties for herself, resulting in the court's 26–page statement of decision and judgment awarding the properties and misappropriated funds to Hsieh.

Peng appeals.

DISCUSSION 2

We start with a “ ‘ “presumption that the record contains evidence to sustain every finding of fact.” ’ ”  (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)   Any challenge to the factual findings requires the appellant to demonstrate there is no substantial evidence to support those findings.   (Ibid.) This demonstration requires the appellant to “ ‘ “state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings.” ’ ”  (Ibid.) The appellant must “ ‘ “set forth in their brief all of the material evidence on the point and not merely their own evidence.” ’ ”  (Ibid., italics omitted;  see Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

These rules of appellate procedure are designed to facilitate the efficient administration of justice—allowing the court to focus on the important job of resolving disputed legal issues and correcting errors—and are not complicated or burdensome.   Failure to follow these rules is adequate ground to find an appellant has forfeited his or her arguments on appeal.  (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768 [“violation of the rules of court may result in the striking of the offending document, the waiver of the arguments made therein, the imposition of fines and/or the dismissal of the appeal”];  Gunn v. Mariners Church, Inc. (2008) 167 Cal.App.4th 206, 218 [argument on appeal deemed forfeited by failure to present factual analysis and legal authority on each point raised];  People ex rel. Dept. of Alcoholic Beverage Control v. Miller Brewing Co. (2002) 104 Cal.App.4th 1189, 1200 [same].)

Consistent with what the trial court found to be Peng's contempt and utter disregard for the court and its orders, Peng has failed to follow these basic rules.   Her brief begins with a “Relevant Facts” section that contains her cursory assertions as to her version of events only, purportedly supported by documents either never presented to the trial court or rejected as fraudulent, with no citation whatsoever to the record.   Instead of a statement of facts, she provides an unsupported argument, lacking any evidence demonstrating prejudicial error.  “Instead of a fair and sincere effort to show that the trial court was wrong, appellant's brief is a mere challenge to respondents to prove that the court was right,” justifying the determination she has waived her arguments on appeal.  (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115–1116, citations and internal quotations omitted.)

Courts in some cases have exercised their discretion to consider an appeal notwithstanding deficient briefing.  (See Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768 [court exercised discretion to consider position “[i]n spite of the failures in the briefing”].)   Notwithstanding the fact that the numerous deficiencies in Peng's brief would justify disregarding her arguments altogether, in light of the magnitude of the judgment entered after a trial conducted in Peng's absence, particularly in light of her pleas to this court urging she was deprived of due process when denied a requested continuance because she urgently needed medical treatment and in the absence of an interpreter for contempt proceedings resulting in a sentence of five days in jail and 240 hours of community service among other claims, we have reviewed the record in its entirety, including those portions Peng elected to omit but which Hsieh has provided and are satisfied that Peng has failed to demonstrate prejudicial error in any respect whatsoever.

To the contrary, Peng has disregarded her burden as the appellant to demonstrate error with citations to the record and relevant legal authority, essentially arguing instead it is the court's and the respondent's burden to establish that the judgment was proper;  she ignores altogether the standard of review on appeal;  she has omitted necessary material from the record;  she has instead requested judicial notice of documents not properly noticeable, not properly presented in the trial court (and in some cases appearing to be fraudulent);  she has claimed certain documents were presented to the trial court when they never were or when they were merely lodged at her insistence with no motion identified and no notice to Hsieh, and for these egregious abuses of the appellate process, we find this to be a case warranting the imposition of sanctions.³

I. The Trial Court Properly Exercised Jurisdiction.

According to Peng, the trial court lacked subject matter jurisdiction.   We disagree.

Family Code section 2320 provides:  “A judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.”  “More generally, residence requires proof of physical residence and an intention to remain.”  (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 156, citation omitted.)

In its statement of decision, the trial court found jurisdiction had been established for several reasons, beginning with the fact Peng had signed and filed a California Petition for Dissolution representing that she was a resident of California, she sought enforcement of a Marital Settlement Agreement to the same effect, and indicated in other court filings she resided in Rosemead.

Peng says her evidence proves neither Hsieh nor Peng met the residency requirement of Family Code section 2320, and she resided in New York. Under the substantial evidence rule of appellate review, “[our] task begins and ends with a determination as to whether there is any substantial evidence to support [the trial court's finding],” and where there is conflicting evidence, “ ‘that which favors the judgment must be accepted as true, and that which is unfavorable must be discarded․’ ”  (In re Marriage of Dick, supra, 115 Cal.App.4th at p. 156, citation omitted.)   Peng cites In re Marriage of Zierenberg (1992) 11 Cal.App.4th 1436, for the following proposition:  “A marriage dissolution action is dependent on either party's domicile in the foreign state.   After an action is filed in one state, one of the parties may move and attempt to invoke the new domiciliary state's jurisdiction on the same controversy.”   In fact, Peng has misrepresented this authority as the case is to the contrary (a California decree was void because the trial court ignored a prior valid decree in Puerto Rico).  (Id. at pp. 1444–1445.)

“The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue.   Unless this is done, the error assigned is deemed to be waived.  [Citation.]  It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings.   [Citations.]”  (In re Marriage of Fink (1979) 25 Cal.3d 877, 887.)   Accordingly, we summarily reject Peng's arguments based upon a lack of substantial evidence.   It is “neither practical nor appropriate for us to comb the record on [her] behalf.”  (Id. at p. 888.)

II. The Judgment Is Not Void Under Family Code Section 2107.

Citing Family Code section 2107, subdivision (d), Peng says her failure to exchange a Final Declaration of Disclosure as required under section 2105 mandates reversal of the judgment because the “failure to comply with the disclosure statements [sic, requirements] does not constitute harmless error.”  (Hsieh served his final declaration of disclosure on June 12, 2009.)   We disagree.

The California Constitution provides:  “No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”  (Cal. Const., Art. VI, § 13.)

“[T]he statement in section 2107, subdivision (d) that a failure to comply with the final disclosure requirements is not ‘harmless error’ must give way to the Constitution and the balance of the legislative scheme.”  (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 528.)   Accordingly, “before section 2107, subdivision (d) can be the basis of reversal on appeal ․, a noncomplying litigant must identify some portion of the judgment materially affected by her nondisclosure.”  (In re Marriage of Steiner & Hosseini, supra, 117 Cal.App.4th at p. 528.)   There is no indication her final declaration would differ from her preliminary declaration dated May 18, 2009, which was admitted at trial, and she claimed the Rosemead, New York and Taiwan properties as her separate property in that document.   Peng has failed to identify how she suffered any prejudice attributable to her failure to provide Hsieh with her own final declaration of disclosure.   We find no ground for reversal.  (Ibid.;  and see Code Civ. Proc., § 475 [no judgment shall be reversed by reason of non-prejudicial error, and the burden is on the appellant to show that the error was in fact prejudicial].)

III. The Judgment Is Consistent with Family Code Section 2660.

Citing subdivision (a) of section 2660 and In re Marriage of Fink (1979) 25 Cal.3d 877, Peng says “the trial court is bound to seek a remedy ‘in such a manner that it is not necessary to change the interests held’ in the out of state realty.”   According to Peng, “the trial court did not follow any provisions of [section] 2660.   Instead, the trial court determined title to the out of state property by awarding the New York property ‘entirely to [Hsieh].’ ”   Citing Rozan v. Rozan (1957) 49 Cal.2d 322, she says, “This action exceeded the trial court's jurisdiction and must be modified to remove the language affecting title in as much [sic] as the California judgment cannot directly affect title to the out of state property.”   We disagree.

Family Code section 2660 (property division where community estate includes real property located in another state) specifies as follows:

“(a) Except as provided in subdivision (b), if the property subject to division includes real property situated in another state, the court shall, if possible, divide the community property and quasi-community property as provided for in this division in such a manner that it is not necessary to change the nature of the interests held in the real property situated in the other state.

“(b) If it is not possible to divide the property in the manner provided for in subdivision (a), the court may do any of the following in order to effect a division of the property as provided for in this division:  (1) Require the parties to execute conveyances or take other actions with respect to the real property situated in the other state as are necessary.  (2) Award to the party who would have been benefited by the conveyances or other actions the money value of the interest in the property that the party would have received if the conveyances had been executed or other actions taken.”  (Italics added.)

Peng mischaracterizes both the law and the record in this case.   In Marriage of Fink, supra, 25 Cal.3d 877, the court addressed section 4800.5, the predecessor statute to section 2660, and emphasized, “we interpret section 4800.5 as establishing only a preference that community real property situated in other states be divided without changing title thereto.   It still leaves the determination of when such a division is possible to the sound discretion of the trial court consistent with its duty to achieve a practical, equitable and equal property division.”   In Rozan v. Rozan, supra, 49 Cal.2d 322, 330, citations omitted, our Supreme Court stated, “A court of one state cannot directly affect or determine the title to land in another․  It is well settled, however, that a court, with the parties before it, can compel the execution of a conveyance in the form required by the law of the situs and that such a conveyance will be recognized there.”

Here, contrary to Peng's unsubstantiated assertion, the trial court explained why it was exercising its discretion in the manner it did, and, as specifically provided in section 2660, subdivision (c)(1), included language in the judgment “[r]equir[ing] the parties to execute conveyances or take other actions with respect to the real property situated in the other state as are necessary.”   More particularly, on page 1 of the “property order attachment to judgment,” under the heading “Division of community property assets,” the judgment states that Hsieh will receive the New York property as his sole and separate property, with a check in the box preceding the following text:  “Each spouse will receive the assets listed above as his or her sole and separate property.   The parties must execute any and all documents required to carry out this division.”  (Italics added.)   Although she included the first two pages of the judgment in her appellant's appendix, Peng omitted this page (along with the rest of the judgment), despite the fact that the second page of the judgment expressly states, “Number of pages attached:   6 “ (The full document is contained in Hsieh's appendix.)

IV. The Trial Court Did Not Err by Allowing Hsieh's Attorney Daughter to Testify at Trial.

Without a single citation to the record, Peng asserts for the first time, “In the case before this Court, Amy O'Keefe, attorney for [Hsieh], testified at trial that [Peng] and attorney[ ] Amy O'Keefe had several conversations involving protected attorney client confidential communications prior to Ms. O' Keefe representing her father [Hsieh].   Yet despite this attorney-client relationship[,] at no time prior to her representation of [Hsieh], did she or her firm ever obtain the signed written consent of [Peng] allowing Ms. O'Keefe or her firm to represent [Hsieh] and then to throw salt into wound, testify as to confidential attorney-client communications imparted to her by [Peng]. This was not harmless error and attorney[ ] O'Keefe's testimony was extremely harmful to [Peng] related to conversations she had with Ms. Peng, regarding her demeanor, the attempt to convince the trial court that Ms. Peng was domineering over her father both before litigation in this matter was begun on October 7, 2007 and thereafter even though she was then representing her father necessitating reversal of the judgment.” ⁴

“[C]onclusory assertions are wholly inadequate to tender a basis for relief on appeal.”  (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.)  “[I]t is counsel's duty to point out portions of the record that support the position taken on appeal.   The appellate court is not required to search the record on its own seeking error.   Again, any point raised that lacks citation may, in this court's discretion, be deemed waived.”  (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.)   Even if Peng is suggesting Hsieh's daughter provided advice over the phone when she indicated Hsieh should go to the police about the tenant supposedly going after him, Peng has made no showing whatsoever as to how this communication gave rise to an attorney-client relationship between Peng and Hsieh's daughter.

V. The Trial Court Did Not Abuse Its Discretion in Denying Peng's Request for a Continuance on the Day of Trial.

According to Peng, “Way back in February 10, 2009[sic] the Court was informed that [Peng] was ill.”

Attorney Hock Yong (according to Peng, now disbarred) was identified on Peng's original petition for dissolution filed on October 18, 2007.   On October 15, 2008, Charles O. Agege filed an association of attorneys indicating he would be representing Peng along with Yoon. On December 3, 2008, Peng was present in court with Agege (who had apparently filed and argued a motion to dismiss on forum non conveniens grounds for her) and authorized him to agree on the record to accept service of an amended OSC re:  Contempt.   On January 12, 2009, Peng appeared and when the trial court asked about her counsel, she said, “I represent myself.   I don't need a lawyer.”   She said, “Agege not do anything.   Just take my money.   So [$]32,000.   He never do anything.”   When trial court noted she had not filed a substitution of attorneys yet, Hsieh's counsel said Agege had just appeared the preceding Thursday (January 8) in the related fraud case and had not mentioned he was substituting out, but “we just got something from Mr. Agege saying he wasn't sure he was going to continue to be her attorney.   This is what happened the first time we came to a critical juncture in this case which was she brought in Agege, and they got three months worth of continuances.   Ms. Peng is representing herself in two lawsuits in New York. She's represented herself in two lawsuits in New York. She understands the system.   We need to proceed today because Mr. Hsieh has a lot of assets that he wants held that he doesn't have.   We need to move forward.”

The trial court responded:  “Well, my concern wasn't with the fact that Ms. Peng is now representing herself.   She has that prerogative if she thinks that makes sense.   I was under the impression that we were—we had a problem because we don't have a Mandarin interpreter.

“[Hsieh's counsel]:  It's my understanding that Ms. Peng speaks five or six languages—French, English[—]

“The Court:  I'm only concerned with English.

“[Hsieh's counsel]:  English is among them.   She's filed declarations certainly in this action in English.   She filed a 24–page answer in English in pro per in the fraud action initially.   That's why I'm raising the issue [.  S]he's representing herself in New York in English.”

“The Court:  Ms. Peng, are you prepared to represent yourself today?

“[Peng]:  I have many, many new document for the judge.

“The Court:  You know, you can't come in here on the morning of the hearing—

“[Peng]:  Too maybe I—

“The Court:  These are the moving papers.

“[Peng]:  No, I have new—

“The Court:  I spent hours with this file this weekend, and there were no opposition papers.   Here are my notes, 15 pages of notes.   So I'm not going to be looking at documents that you didn't bring here until this morning.”   The court placed the matter on second call to allow Hsieh's counsel an opportunity to review documents and then continued the matter to the afternoon.   The court expressed difficulty understanding Peng. She said she had a friend with her who was not an attorney, but who knew English and knew her case.   The court attempted to proceed as Peng indicated she was ready and wanted to do so, but when the court attempted to confirm Peng's understanding of the contempt matter, Peng began saying, “I don't understand what you talking about.   I don't understand English very well.”

At that point, the court stopped, indicating:  “All right.   Here is the problem.   I'm going to go ahead on the other matters today because you already told me you wanted to go forward, but I'm going to have to continue this contempt.   My sense is that [Peng] doesn't have enough grasp of these proceedings to make a meaningful plea at this time.”   Peng responded, “Yes.”

“The Court:  Unfortunately, we need to order a Cantonese interpreter in advance because they are just not available on a routine basis in the court.   So I'm going to continue the arraignment.   Now you have to get yourself a lawyer Ms. Peng.

“[Peng]:  No, I can't find a lawyer.   I don't have money for a lawyer.   I give lawyer money.   I don't have.

“The Court:  You're not going to get yourself a lawyer?

“[Peng]:  No, no.

“[The Court]:  If you choose not to have a lawyer, when you come back I'm going to have a Cantonese interpreter here, and we'll make sure you understand.   This contempt is a criminal proceeding.   I think you have enough grasp of the language to proceed on civil matters.   But I'm concerned that your grasp of English is not sufficient in connection in a matter for which you may go to jail.   I'm going to continue the arraignment.”

Peng clarified that she needed a Mandarin interpreter instead.   The court confirmed, “Mandarin.   Okay. We're going to have an interpreter here.”   Peng's friend (Daryl Irving) who had stepped in to facilitate communication told the court, “Your Honor, she was going to come back in this afternoon and ask that these proceedings be continued because she didn't feel she understood what was going on․”

“The Court:  When will she be prepared?

“Mr. Irving:  She'll be prepared when she comes in with a Mandarin interpreter or Taiwan interpreter on every question so, when she hears there is going to be a trial, that is translated to her in her language.   She's not—she doesn't really understand what was just said.”

“The Court:  Here's the problem.   Putting aside the hours I spent on this file this weekend, this is just part of it, the counsel for [Hsieh] has come down from San Francisco and spent a lot of time coming.   And as far as we knew, or as the court knew anyway, we were going to have Mr. Agege here representing [Peng].

“She files a substitution of attorney on January 8—she didn't file it.   I didn't see it until this morning.   So what I'm going to do is I'm going to give you a continued date.”   The court emphasized there would be no more delays.   Peng said she was “sick” and “need[ed] cure in Taiwan.”   The court said to address whatever the matter was before the next hearing.   She later said she had experienced low back pain for the last two years.

When she appeared on March 2, there was no mention of medical issues.   Peng's contempt trial was originally set for April 22, 2009, and although the trial court had repeatedly warned that the court would indulge no further delays, Peng did not appear.   According to her counsel at the time (Albert Vogel), “she's in Taiwan,” “collecting information” on attorney's fees and spousal support and had sent him some exhibits she wanted the court to see.   Asked why she did not appear for her contempt trial, her counsel said, “she decided apparently it was more important to try to get this information in Taiwan.   You know, she made that decision.”   There was no mention of illness or medical treatment.

The contempt proceeding was continued to June 2, 2009.   At that time, Baird Brown who represented Peng in the related fraud case “specially appeared” to say “Peng could not attend the hearing on June 2, 2009 because she had to return to New York for medical reasons.”   As it turned out, she was obtaining documents in Taiwan.

Peng was ordered to show cause on July 23, 2009, why sanctions should not be imposed under Family Code section 721 for her failure to appear.   The court specifically ordered Peng to provide at the next hearing (1) proof of medical necessity including records of the procedures for which she was required to go to New York, when she knew of her medical condition, and when she made the appointment for treatment, and (2) a doctor's report of Peng's medical condition which also attests to when the appointment was made with the doctor's office.   Her absence resulted in a further continuance, and on July 23, 2009, Brown again “specially” appeared to submit an ex parte application to continue trial on the ground Peng needed “immediate back surgery” and was flying out the night of July 22 for surgery on July 23.   Hsieh's counsel represented Peng had made no mention of any medical emergency in communications over the preceding weeks.   Baird presented three documents the court found “peculiar,” and inadequate to substantiate the requested continuance, and denied the request.   Brown's office submitted additional documentation on August 20, in which Peng asserted (without any supporting documentation) she had undergone surgery on August 17.   The court noted a “pattern on her part to delay these proceedings over and over again” along with the prejudice to Hsieh and denied the request for continuance.   Having reviewed the entire reporter's transcript as well as the limited documentation Peng actually presented at the time (she now improperly presents documents obtained later along with the original documents and claims they support her request to the trial court—it appears she may have had surgery on August 17) which presents the full context and record on which the court ruled.   We find no abuse of discretion.  (People v. Avila (2004) 117 Cal.App.4th 771, 775, 780, fn. 4;  Young v. Redman (1976) 55 Cal.App.3d 827, 831.)

VI. Peng Has Failed to Demonstrate Prejudicial Error Attributable to the Absence of an Interpreter at the February 10, 2009 Hearing.

Without bothering to designate or even look at the relevant hearing transcripts of March 2, 2009, Peng says her due process rights were violated because she was deprived of an interpreter.   To the contrary, the record establishes Peng claimed she did not receive the clerk's communication (notwithstanding the court's belief in the clerk and court reporter who witnessed the conversation) she would have to provide her own interpreter as the court was unable to provide one for the type of proceeding so the court continued the matter to March 2 so Peng could appear with an interpreter.   In fact, Peng did appear for her arraignment with the assistance of a Mandarin interpreter on March 2 along with new counsel (Monica Molina, substituted in on February 25).   Although she had been warned there would be no further delays, she chose not to appear on July 23.   Peng clearly was not prejudiced by the absence of an interpreter on February 10, 2009, as she claims.  (Young, supra, 55 Cal.App.3d at p. 832.)

VII. The Judgment Is Supported By Substantial Evidence.

Peng asserts the facts presented at trial in her absence demonstrate “she committed[ ] no fraud, undue influence or duress over [Hsieh].   Instead of supporting her argument with citations to the record as required under California law, Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768, she “incorporates by reference the trial court transcript of the proceedings held on [July 23 and 24, 2009].”   The basis for her argument is “this particular story is unbelievable.”   Again, her assertions amount to a challenge to the sufficiency of the evidence.  “It is neither practical nor appropriate for us to comb the record on her behalf.”  (Marriage of Fink, supra, 25 Cal.3d at p. 888.)   Nevertheless, having reviewed the record, this claim lacks merit as well.

VIII. Peng Has Failed To Demonstrate Error in the Trial Court's Imposition of Sanctions Against Her.

Peng apparently challenges the April 22, 2009, order imposing sanctions in the amount of $26,060 against her although she included neither the order nor transcript of that date in the record.   Her appeal from this order is untimely (Imuta v. Nakano (1991) 233 Cal.App.3d 1570, 1578), and in any event, she has shown no abuse of discretion as required.   Rather, she asserts without evidentiary basis that the order “seems unfair” as there is no indication she has the ability to pay.   To the contrary, based on the documentary evidence before it (“records that were verified through traditional banking sources and verifiable expenses”), the trial court found that Peng had income in the amount of $12,000 to $13,000 per month going forward.  (The court also determined she had $525,302.70 she had misappropriated from Hsieh.)

IX. Sanctions Are Warranted in this Case.

Peng's brief contains too many mischaracterizations and conspicuous omissions of the record, misstatements of legal authority, assertions of defective documents and other manifest deficiencies to ignore.⁵  (Cf. Bus. & Prof.Code, § 6068, subd. (d) [duty of attorney “never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law”];  Rules Prof. Conduct, rule 5–200(C) [a member of the State Bar “[s]hall not intentionally misquote to a tribunal the language of a book, statute, or decision”].)   Although sanctions are to be “used most sparingly to deter only the most egregious conduct” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 651), we believe imposition of sanctions is fully justified in this case.

Counsel for Hsieh seeks sanctions in the amount of $79,038.50.   We have reviewed counsel's supporting declaration.   We note that the trial court, in connection with a request for attorneys' fees in the trial court, commented, “I think your rates are more than reasonable, and I think you did an exceptional job with great efficiency, frankly.   I'm surprised at how few hours you spent because this was an enormously complicated tracing problem with bank records and nothing came easy.”   We note further that Hsieh's counsel (his daughter and son-in-law) provided excellent briefing—well supported with both citations to the record and legal authority—which only serves to highlight the woefully inadequate briefing from Peng. We conclude that a reasonable sanctions award under the circumstances presented in this case is $15,000.

In addition to sanctions payable to Hsieh, a separate sanction should be payable directly to the clerk of this court.  “ “ ‘ “Other appellate parties, many of whom wait years for a resolution of bona fide disputes, are prejudiced by the useless diversion of this court's attention.  [Citation.]  In the same vein, the appellate system and the taxpayers of this state are damaged by what amounts to a waste of this court's time and resources.  [Citations.]  Accordingly, an appropriate measure of sanctions should ․ compensate the government for its expense in processing, reviewing and deciding a frivolous appeal.  [Citations.]”  [Citation.]’  [Citation.]”  (Pollock v. University of Southern California (2003) 112 Cal.App.4th 1416, 1433;  accord, Pierotti v. Torian (2000) 81 Cal.App.4th 17, 35 [because frivolous appeal harms the court, not just the respondent, additional award of sanctions payable directly to the court clerk to compensate the state for the cost of processing such appeals is appropriate].)

“A number of Court of Appeal decisions have adopted figures of $5,900 to $6,000 as a conservative estimate of the costs of processing an average appeal, basing those figures on a calculation made in 1992.  (See, e.g., Pollock v. University of Southern California, supra, 112 Cal.App.4th at p. 1434;  Pierotti, supra, 81 Cal.App.4th at p. 36;  Cohen v. General Motors Corp. (1992) 2 Cal.App.4th 893, 897 [ 3 Cal.Rptr.2d 619].)   A current cost analysis undertaken by the clerk's office for the Second Appellate District, using the same general methodology, indicates the cost of processing an appeal that results in an opinion by the court is approximately $ 8,500, while the cost for processing a case that is resolved without opinion (for example, by dismissal for lack of an appealable order) is approximately $1,750.”  (In re Marriage of Gong & Kwong (2008) 163 Cal.App.4th 510, 520.)

This opinion constitutes a written statement of our reasons for imposing sanctions.  (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 654;  Pollock v. University of Southern California, supra, 112 Cal.App.4th at p. 1434;  Westphal v. Wal–Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1083.)

DISPOSITION

The judgment is affirmed.   Hsieh is entitled to his costs of appeal.   Peng's request for judicial notice filed August 23, 2010, is denied.  (We previously denied Peng's request for judicial notice filed December 20, 2010.)   Hsieh's requests for judicial notice (of documents relating to the New York dissolution action) are denied.   The motion for sanctions is granted.   Peng and her counsel are to pay sanctions in the amount of $15,000 to Hsieh and his counsel;  in addition, Peng and her counsel are to pay sanctions in the amount of $8,500 to the clerk of this court.   The clerk will forward a copy of this opinion to the State Bar of California.  (Bus. & Prof.Code, § 6086.7, subd. (a)(3).)

We concur:

FOOTNOTES

FN1. Peng initially claimed she never saw any such funds;  later she said the money was for repayment of loans Hsieh owed her (but never substantiated any loans).  “[N]o evidence is required․  That is the end of the debate.”   Later, after it was learned she had wired at least $400,000 of this money to Taiwan, she said the money was given to her and then returned to Hsieh in a suitcase full of cash..  FN1. Peng initially claimed she never saw any such funds;  later she said the money was for repayment of loans Hsieh owed her (but never substantiated any loans).  “[N]o evidence is required․  That is the end of the debate.”   Later, after it was learned she had wired at least $400,000 of this money to Taiwan, she said the money was given to her and then returned to Hsieh in a suitcase full of cash.

FN2. We do not consider the arguments Peng raises for the first time in her reply brief.  (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 214.).  FN2. We do not consider the arguments Peng raises for the first time in her reply brief.  (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 214.)

FN3. Apart from her defective requests for judicial notice of documents which are not judicially noticeable, most of which were never presented to the trial court (or, if they were, omit material pages, including signatures found to have been forged), many were prepared after the filing of this appeal (and some appear to be fraudulent).   In fact, Peng includes new documents along with old documents and claims they were all presented to the trial court..  FN3. Apart from her defective requests for judicial notice of documents which are not judicially noticeable, most of which were never presented to the trial court (or, if they were, omit material pages, including signatures found to have been forged), many were prepared after the filing of this appeal (and some appear to be fraudulent).   In fact, Peng includes new documents along with old documents and claims they were all presented to the trial court.

FN4. In her reply, Peng says, “It should be stressed that [Peng] should probably have filed a Motion to Disqualify Counsel;  however, having failed to timely do so, [Peng] ‘waived’ her right to do so and at this point, it would clearly be prejudicial to [Hsieh].”.  FN4. In her reply, Peng says, “It should be stressed that [Peng] should probably have filed a Motion to Disqualify Counsel;  however, having failed to timely do so, [Peng] ‘waived’ her right to do so and at this point, it would clearly be prejudicial to [Hsieh].”

FN5. Peng construes this court's denial of Hsieh's motion to strike non-complying portions of her appendix as validation of those documents as well as the arguments relying upon them.   Peng assumes too much..  FN5. Peng construes this court's denial of Hsieh's motion to strike non-complying portions of her appendix as validation of those documents as well as the arguments relying upon them.   Peng assumes too much.

PERLUSS, P.J. ZELON, J.