FELDMAN SANCTION REVERSED ON APPEAL - Often you'll hear after a court hands down a decision, one of the attorneys says to the press, "we're going to appeal the case". Normally this is just braggadocio because the appeals process is daunting and takes a long time and a lot of legal work. This appeal was filed in June of 2009, and this is how long it takes to get an appeals decision. Few cases are overturned on appeal, and very very few are approved for publication. When an appeals case is published, this means lower courts can "argue" that their judge must follow the decision of the higher (appeals) court. If a case is approved for publication, this means that there is a foggy area of law that has been clarified by the appeals court.
Click here to read the higher court's published decision.
The case of In re Marriage of Feldman, supra, 153 Cal.App.4th 1470, is famous in California because it basically shook the practice of family law in one swoop. It basically said, if you fail to disclose an asset in a divorce case, you can get sanctioned. Mr. Feldman failed to disclose a big asset, and got a nearly $400,000 sanction. Mine was equally on a large scale, even though my ex-wife testified in court that there were no major assets that I failed to disclose (other than a painting). There have been popular seminars in the california legal profession on how to avoid a Feldman Sanction. And this, I believe, is the first Feldman sanction to be overturned.
The way a law works is that the legislative body (in the US, it's congress, in the state, it's the state legislature) writes a law (e.g. "you can't drive too fast"). The language within a law is typically the best that the lawmakers can do at the time, but any ambiguity that isn't clear in the language is further clarified by higher courts. (e.g. "How fast is too fast? What did the lawmakers actually mean by that?") A great example is Roe vs. Wade, the supreme court decision that made it legal (federally) for a woman to have an abortion as defined by the moment life "begins". That is where the law is written one way, and the interpretation of the words can be argued forever. But this is how a law is "refined". First the law is written. But the words are maybe not crystal clear, and the lower court makes rulings based on the written law. Sometimes lower courts make an error, and this is where the Appeals Court polices what the lower courts do. It's not good for a judge to get reversed on appeal, so judges would like to avoid it.
Appeals court is the next level, then after that is the supreme court on both State and Federal levels. So when people get a parking ticket and they vow to fight it "all the way to the Supreme Court" - that's not how it works. You can only appeal a case and win if the lower court made an error of law or discretion.
In the lower court you get one judge. In the appeals court, you get three justices. By the time you get to the Supreme Courts, you face nine judges. In each step up, you CANNOT present new evidence, and you can only argue the error that the lower court made. The higher courts typically defer to the lower courts as to what the evidence said (as the three judges weren't "there" to hear the case the first time). So the higher courts can only work with the lower court transcripts, evidence that was properly "entered" (meaning that it is substantial to the argument and it follows the rules of evidence). For example - no matter how it looks on TV court dramas, there's never really a kaboom moment, as any evidence that is presented can't be a surprise to the other side, so they can prepare a defense to whatever you bring in front of the judge. It's all really a very rigorous process. But what's nice about appeals is that it protects litigants from a judge that makes an error.
In our case, my long-ago ex wife after years of silence brought me to court seeking millions of dollars for my company and initially requested permanent spousal support, even though we were only married for five years. She was given $0 for spousal support and under $3,000 for any interest in my companies. However, the one thing that really spun us around was when the judge ordered hundreds of thousands of dollars against me for how I provided evidence during the trial.
Oh I need to make a correction in case something in the below published opinion gets confused. Attorney Kendra Thomas was the attorney on record for the appeal, but the attorneys during the lower court trial were Barbara Hammers, Armine Baltazar and Deena B. Younan of the law firm Hammers and Baltazar. From what I heard from Casey, Kendra Thomas was a nice person but she was brought into the case at the last minute, and shouldn't be seen as the non-prevailing lawyer as a result of this decision. So when the appeals court writes in the opinion that "Marci" didn't file her final declaration of disclosure (which is what happened in this instance), it wasn't Kendra Thomas. Hammers & Baltazar represented Marci. It takes very little time for an attorney to fill out a few simple but crucial forms in the final declaration of disclosure, but as these were not filed AT ALL, and the result is hundreds of thousands of dollars.
If you have or are going through a divorce, the declaration of disclosure is a list of your income and expenses, assets and debts and must be filed by a deadline imposed by your court rules. Our case was widely known as the $300,000 Feldman Sanction, and to my knowledge this is the first time that a Feldman sanction has been overturned in appeals.
If my attorney, Casey Olsen, had done this error, he'd be facing a malpractice lawsuit. Your lawyer should know the rules of trial and follow them. If they don't, and it costs you, then you take the hit if your lawyer makes a mistake.
Casey is just a really passionate person who stubbornly fights for what is right. And another thing, when you are facing a conflict, it's not productive to take a hugely unreasonable position. Marci argued in a declaration that she should get a piece of my company because she witnessed me take a napkin and fashion it into the shape of a Coleman lantern, and for this it was reasonable to a share of my company, even though the Lightsphere was invented years later. When the judge discarded that argument, Marci's forensic accountants, Donald Miod, of Miod & Co. (with ex partner Steven B. Garelick) tried to claim that the domain name "garyfong.com" was worth well over a million dollars, just for the name alone. My forensic accountant, Ron Anfuso, showed the domain name appraisal of garyfong.com at less than $3,000 and the judge ruled on our side.
It didn't endear me to Attorneys Barbara Hammers and Armine Baltazar when they tried to get me thrown in jail for not paying a sanction, even though I had paid it in full at time of the hearing, and there's no such thing as a debtor's prison (that case got thrown out in minutes). (see ruling)
In fact, this is why the next book that my publisher is eager to publish is called, "Huff and Bluff". This idea of making a person's life a litigation nightmare so that they may settle may backfire in a huge way. Marci spent something like a million dollars on this case, and it was a huge expense of resources on our end and her end. According to her court filings, she has not gotten a job since we split up eight years ago, probably hoping that I would have to give her spousal support so she could rest on easy street. She sued me both in Los Angeles and in Canada (at the same time) trying to get spousal support, and lost both cases.
A correction also about the published opinion below: we did make a settlement offer, and our lower court judge, Mark Juhas, ruled that our settlement offer was not unreasonable, while Marci's was unreasonable. I will be publishing most of the trial declarations and briefs as this is really a landmark decision, and will be referred to by lawyers throughout the State of California for as long as I can see into the horizon.
Here is the text of the appeal. It will be closely studied and argued by California family lawyers for a long, long time. Congratulations to Casey Olsen for winning this published opinion.
Click here to read the higher court's published decision.
The case of In re Marriage of Feldman, supra, 153 Cal.App.4th 1470, is famous in California because it basically shook the practice of family law in one swoop. It basically said, if you fail to disclose an asset in a divorce case, you can get sanctioned. Mr. Feldman failed to disclose a big asset, and got a nearly $400,000 sanction. Mine was equally on a large scale, even though my ex-wife testified in court that there were no major assets that I failed to disclose (other than a painting). There have been popular seminars in the california legal profession on how to avoid a Feldman Sanction. And this, I believe, is the first Feldman sanction to be overturned.
The way a law works is that the legislative body (in the US, it's congress, in the state, it's the state legislature) writes a law (e.g. "you can't drive too fast"). The language within a law is typically the best that the lawmakers can do at the time, but any ambiguity that isn't clear in the language is further clarified by higher courts. (e.g. "How fast is too fast? What did the lawmakers actually mean by that?") A great example is Roe vs. Wade, the supreme court decision that made it legal (federally) for a woman to have an abortion as defined by the moment life "begins". That is where the law is written one way, and the interpretation of the words can be argued forever. But this is how a law is "refined". First the law is written. But the words are maybe not crystal clear, and the lower court makes rulings based on the written law. Sometimes lower courts make an error, and this is where the Appeals Court polices what the lower courts do. It's not good for a judge to get reversed on appeal, so judges would like to avoid it.
Appeals court is the next level, then after that is the supreme court on both State and Federal levels. So when people get a parking ticket and they vow to fight it "all the way to the Supreme Court" - that's not how it works. You can only appeal a case and win if the lower court made an error of law or discretion.
In the lower court you get one judge. In the appeals court, you get three justices. By the time you get to the Supreme Courts, you face nine judges. In each step up, you CANNOT present new evidence, and you can only argue the error that the lower court made. The higher courts typically defer to the lower courts as to what the evidence said (as the three judges weren't "there" to hear the case the first time). So the higher courts can only work with the lower court transcripts, evidence that was properly "entered" (meaning that it is substantial to the argument and it follows the rules of evidence). For example - no matter how it looks on TV court dramas, there's never really a kaboom moment, as any evidence that is presented can't be a surprise to the other side, so they can prepare a defense to whatever you bring in front of the judge. It's all really a very rigorous process. But what's nice about appeals is that it protects litigants from a judge that makes an error.
In our case, my long-ago ex wife after years of silence brought me to court seeking millions of dollars for my company and initially requested permanent spousal support, even though we were only married for five years. She was given $0 for spousal support and under $3,000 for any interest in my companies. However, the one thing that really spun us around was when the judge ordered hundreds of thousands of dollars against me for how I provided evidence during the trial.
Oh I need to make a correction in case something in the below published opinion gets confused. Attorney Kendra Thomas was the attorney on record for the appeal, but the attorneys during the lower court trial were Barbara Hammers, Armine Baltazar and Deena B. Younan of the law firm Hammers and Baltazar. From what I heard from Casey, Kendra Thomas was a nice person but she was brought into the case at the last minute, and shouldn't be seen as the non-prevailing lawyer as a result of this decision. So when the appeals court writes in the opinion that "Marci" didn't file her final declaration of disclosure (which is what happened in this instance), it wasn't Kendra Thomas. Hammers & Baltazar represented Marci. It takes very little time for an attorney to fill out a few simple but crucial forms in the final declaration of disclosure, but as these were not filed AT ALL, and the result is hundreds of thousands of dollars.
If you have or are going through a divorce, the declaration of disclosure is a list of your income and expenses, assets and debts and must be filed by a deadline imposed by your court rules. Our case was widely known as the $300,000 Feldman Sanction, and to my knowledge this is the first time that a Feldman sanction has been overturned in appeals.
If my attorney, Casey Olsen, had done this error, he'd be facing a malpractice lawsuit. Your lawyer should know the rules of trial and follow them. If they don't, and it costs you, then you take the hit if your lawyer makes a mistake.
Casey is just a really passionate person who stubbornly fights for what is right. And another thing, when you are facing a conflict, it's not productive to take a hugely unreasonable position. Marci argued in a declaration that she should get a piece of my company because she witnessed me take a napkin and fashion it into the shape of a Coleman lantern, and for this it was reasonable to a share of my company, even though the Lightsphere was invented years later. When the judge discarded that argument, Marci's forensic accountants, Donald Miod, of Miod & Co. (with ex partner Steven B. Garelick) tried to claim that the domain name "garyfong.com" was worth well over a million dollars, just for the name alone. My forensic accountant, Ron Anfuso, showed the domain name appraisal of garyfong.com at less than $3,000 and the judge ruled on our side.
It didn't endear me to Attorneys Barbara Hammers and Armine Baltazar when they tried to get me thrown in jail for not paying a sanction, even though I had paid it in full at time of the hearing, and there's no such thing as a debtor's prison (that case got thrown out in minutes). (see ruling)
In fact, this is why the next book that my publisher is eager to publish is called, "Huff and Bluff". This idea of making a person's life a litigation nightmare so that they may settle may backfire in a huge way. Marci spent something like a million dollars on this case, and it was a huge expense of resources on our end and her end. According to her court filings, she has not gotten a job since we split up eight years ago, probably hoping that I would have to give her spousal support so she could rest on easy street. She sued me both in Los Angeles and in Canada (at the same time) trying to get spousal support, and lost both cases.
A correction also about the published opinion below: we did make a settlement offer, and our lower court judge, Mark Juhas, ruled that our settlement offer was not unreasonable, while Marci's was unreasonable. I will be publishing most of the trial declarations and briefs as this is really a landmark decision, and will be referred to by lawyers throughout the State of California for as long as I can see into the horizon.
Here is the text of the appeal. It will be closely studied and argued by California family lawyers for a long, long time. Congratulations to Casey Olsen for winning this published opinion.
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