Filed 2/25/22

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JENNIFER SHENEFIELD,

Plaintiff and Respondent,

v.

MARK SHENEFIELD,

Defendant;

KAROLYN E. KOVTUN,

Objector and Appellant.

 D078643

 (Super. Ct. No. 18FL011393E)

APPEAL from an order of the Superior Court of San Diego County, 

Tilisha Martin and Laura Miller, Judges. Affirmed.

Karolyn E. Kovtun, in pro. per., for Objector and Appellant. 

Higgs Fletcher & Mack, John Morris and Steven M. Brunolli, for 

Plaintiff and Respondent.

INTRODUCTION

Mark Shenefield filed a request for order (RFO) with the court, seeking 

joint legal and physical custody of the child he shares with Jennifer 
2

Shenefield.1 In his declaration, Mark quoted from and referenced the 

contents of a confidential, court-ordered psychological evaluation undertaken 

during Jennifer’s previous marital dissolution. Mark’s attorney Karolyn 

Kovtun filed the paperwork. Jennifer opposed Mark’s request and sought 

sanctions for violations of Family Code2 sections 3111, subdivision (d) 

and 3025.5, for unwarranted disclosure of the confidential custody 

evaluation. 

The court ordered the issue of sanctions to be heard at trial. Jennifer’s 

trial brief detailed her arguments for why the court should impose sanctions 

on both Mark and Kovtun. Mark did not file a trial brief. 

Following trial, the court issued sanctions against Mark in the amount 

of $10,000 and Kovtun in the amount of $15,000. Kovtun challenged the 

sanctions, filing a motion under Code of Civil Procedure section 473, 

subdivision (d). A different court heard Kovtun’s request to vacate the 

sanctions imposed against her and denied the request. 

On appeal, Kovtun argues the court improperly sanctioned her because 

(1) attorneys cannot be sanctioned under section 3111; (2) the notice she 

received did not comply with due process standards; (3) the court lacked 

personal jurisdiction over her; (4) the court failed to enforce the safe harbor 

provision of Code of Civil Procedure section 128.7; and (5) the court

improperly admitted and relied on a transcript of a meeting between Kovtun, 

Mark, and Jennifer. We find Kovtun’s arguments meritless, and we will 

affirm.

1 Because these parties share a surname, we refer to them by first name 

for clarity.

2 Statutory references are to the Family Code unless otherwise specified.
3

I.

BACKGROUND AND PROCEDURAL FACTS

Jennifer and Mark were married on August 22, 2014. They share one 

child, who was born in June 2016. 

On May 25, 2017, Jennifer sought a temporary restraining order 

against Mark. On June 13, 2017, the court issued a domestic violence 

restraining order, which is set to expire June 12, 2022. 

On September 13, 2017, Mark pled guilty to misdemeanor battery on a 

spouse. The court issued a criminal protective order against Mark. Jennifer

was given sole physical custody of their child. Kovtun was Mark’s attorney of 

record. 

Jennifer filed for marital dissolution from Mark on September 26, 2018. 

On August 21, 2018, Mark filed an RFO seeking joint legal and 

physical custody of the couple’s child. In Mark’s attached declaration, after 

detailing allegedly false allegations Jennifer made against her previous 

husband, Mark wrote: “Jennifer was ordered to undergo a E[vidence] C[ode]

§730 evaluation by Dr. Stephen Sparta who suggested that she would do it 

again if she felt the ends justified the means.” Then Mark explained the 

court presiding over Jennifer’s previous marital dissolution matter ordered a 

psychological evaluation, which was performed by Dr. Steven Sparta3 and 

published December 11, 2012. Mark quoted directly from that report for 

nearly a page of his declaration, single-spaced. Mark again discussed content 

from Dr. Sparta’s evaluation in paragraph 10 of his declaration and 

referenced some of the details again in paragraph 15. Kovtun was his 

attorney of record. 

3 Mark’s declaration spells Dr. Sparta’s first name Steven and Stephen. 
4

On February 20, 2019, Jennifer filed her responsive declaration to 

Mark’s RFO. Jennifer wrote that Mark’s RFO included “an illegal disclosure 

of a confidential medical evaluation under [E]vidence [C]ode 730, Family 

Code 3111 and Family Code 3025.5.” Her response also noted that Mark had 

published the contents of the confidential evaluation on Facebook. 

The parties appeared in court February 25, 2019. The court set the 

matter for a bifurcated trial, and the court told the parties it would determine 

custody, visitation, and sanctions at trial. The court set a trial readiness 

conference for May 30, 2019. 

At the trial readiness conference, the court identified issues for trial: 

custody, visitation, child support, spousal support, and sanctions. No one 

objected to the litigation of sanctions. The court directed the parties to 

comply with the California Rules of Court and the local rules in filing trial 

briefs and exhibits. 

Jennifer filed her trial brief August 7, 2019. Section B argued that 

sanctions were warranted against both Mark and Kovtun pursuant to 

section 3111, subdivision (d). She maintained that Kovtun disclosed the 

contents of the previous court-ordered custody evaluation maliciously, 

recklessly, and without substantial justification. Jennifer attached to her 

brief a transcript of a meeting that had occurred between her, Mark, and 

Kovtun on September 28, 2017. 

Mark did not file a trial brief. 

The bifurcated trial occurred over three half-days, on August 14, 2019, 

August 21, 2019, and January 15, 2020. Kovtun represented Mark. 

The trial court rendered a final ruling February 28, 2020 and issued a 

final ruling on bifurcated trial on child custody, visitation and sanctions 

(Final Ruling). 
5

In its Final Ruling, the court found that Mark provided excerpts of the 

child custody evaluation from a previous dissolution matter. It noted that 

Jennifer asked the court to impose sanctions in her February 20, 2019 

response. It confirmed that at the May 30, 2019 trial readiness conference it 

had identified the request for sanctions as an issue for trial. The court stated

that Kovtun was personally served Jennifer’s trial brief, which identified the 

sanctions as an issue to litigate. The court wrote that “counsel was aware 

Petitioner would be requesting sanctions related to the unwarranted 

disclosure of the 730 Custody Evaluation in violation of Family Code 

§3111(d), and this request was reiterated in Petitioner’s Trial Brief filed 

August 7, 2019.” It found that Mark and Kovtun had actual notice of the 

request for sanctions, as well as an opportunity to respond to and oppose the 

request. 

The court then found that Kovtun was a seasoned attorney, and as 

such, she should have been aware of sections 3025.5 and 3111, 

subdivision (d). It also found Kovtun was reckless in filing documentation 

that disclosed a confidential custody evaluation. It concluded Kovtun 

intended for the court to rely on the former custody evaluation from the 

unrelated case. It also found Kovtun was not a party to the unrelated case 

under section 3025.5, and thus sanctions were appropriate. 

The court imposed $15,000 in sanctions against Kovtun, payable at 

$300 per month, starting April 1, 2020, with interest accruing at an annual 

rate of 10 percent.4

4 The court separately concluded Mark’s disclosure of the content from 

the custody evaluation was unwarranted and without substantial 

justification, and it imposed monetary sanctions against Mark in the amount 

of $10,000. 
6

On July 27, 2020, Kovtun filed a motion to vacate the portion of the 

judgment imposing sanctions against her. 

Jennifer opposed the request, and Kovtun filed a reply. 

A court different from the one that issued sanctions heard Kovtun’s 

motion. Following a hearing, the reviewing court denied Kovtun’s request 

and affirmed the sanctioning court’s judgment, incorporating the sanctioning 

court’s Final Ruling. The reviewing court concluded Kovtun was a party to 

the proceedings, as defined in California Rules of Court, rule 1.6(15), found 

Code of Civil Procedure section 128.7 inapplicable, concluded California 

Rules of Court, rule 5.14 did not apply, and found that Kovtun had received 

sufficient notice 

Kovtun timely appealed. 

II. 

DISCUSSION

A. Section 3111 Applies to Attorneys

1. Section 3111

Section 3111, subdivision (a) allows a trial court to order a confidential 

custody evaluation when the court determines that doing so is in the best 

interest of the child. The corresponding report may not be disclosed to any 

person outside of the parties to the action, law enforcement, counsel for the 

child, or if a court orders the disclosure for good cause. (§§ 3111, subd. (b), 

3025.5.) Section 3111, subdivision (d) states, “If the court determines that an 

unwarranted disclosure of a written confidential report has been made, the 

court may impose a monetary sanction against the disclosing party.” The 

monetary sanction should be an amount that deters repetition of the conduct; 

it may include reasonable attorney’s fees, costs incurred, or both, but the 
7

sanction shall not impose “an unreasonable financial burden on the party 

against whom the sanction is imposed.” (Ibid.) 

This authority to impose sanctions was added to section 3111 as part of 

Assembly Bill No. 1877, effective beginning January 1, 2009. (Leg. Counsel’s 

Digest, on Assembly Bill No. 1877 (2007-2008 Reg. Sess.) Feb. 4, 2008.) Prior 

to that revision, the law limited the availability and disclosure of the 

confidential report, but it did not expressly provide for sanctions for 

unwarranted disclosures. (Sen. Com. on Judiciary, Analysis of Assem. Bill 

No. 1877 (2007-2008 Reg. Sess.) as amended April 3, 2008, pp. 2-3.) The 

sanctions were added “to deter repetition of the conduct.” (§ 3111, subd. (d).) 

2. Applicability of Section 3111 to Attorneys

Kovtun’s main argument is that the statute does not apply to her 

because she is an attorney, not a party to the litigation, and the statute 

authorizes sanctions only for parties. She argues the plain language excludes 

attorneys, and the inclusion of attorneys in the statute is not supported by 

the definitions applicable in family court, which she contends define “party” 

to exclude an attorney of record. 

The interpretation of a statute is a question of law, subject to de novo 

review. (Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) Our primary 

task is to “determine and effectuate legislative intent” by looking to the 

statute’s language. (Woods v. Young (1991) 53 Cal.3d 315, 323.) We give 

words their plain and commonsense meaning. (Murphy v. Kenneth Cole 

Productions, Inc. (2007) 40 Cal.4th 1094, 1103.) “[W]hen the statute’s 

language is ambiguous or susceptible of more than one reasonable 

interpretation, [the court may] turn to extrinsic aids to assist in 

interpretation.” (Ibid.) Moreover, “[w]here a statute is theoretically capable 
8

of more than one construction we choose that which comports with the intent 

of the Legislature.” (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 

Cal.3d 836, 844.)

a. Statutory Language and Legislative Intent

The statute states the party against whom the court may appropriately 

impose sanction is the “disclosing party.” (§ 3111, subd. (d).) The modifying 

word “disclosing” describes which parties are included in the statute: any 

person who discloses the confidential information when doing so is 

unwarranted.5 The plain language of the statute does not limit its 

application to named litigants; attorneys can make unwarranted disclosures 

of the confidential information.

The legislative history of section 3111 supports the conclusion that the 

sanctions apply to attorneys of record. Before subdivision (d) was added, 

courts could issue sanctions using section 271. (Assem. Com. on Judiciary,

Analysis of Assem. Bill No. 1877 (2007-1008 Reg. Sess.) as amended Mar. 13, 

2008, p. 2). Under section 271, courts could “base an award of attorney’s fees 

and costs on the extent to which the conduct of each party or their attorneys 

further[ed] or frustrate[d] the promotion of settlement and reduce[d] 

litigation costs.” (Concurrence in Sen. Amendments, Sen. Com. on Judiciary, 

Bill Analysis of Assem. Bill No. 1877 (2007-2008 Reg. Sess.) as amended June 

17, 2008, p. 2.) 

The conduct described in section 271 is different from that prohibited 

by section 3111, subdivision (d): Section 3111, subdivision (d) seeks to deter 

the disclosure of confidential information, while section 271 seeks to 

encourage cooperation toward settlement. (See Boblitt v. Boblitt (2010) 190 

5 Later statutory language further explains the disclosure is 

unwarranted if the disclosure is malicious or reckless. (§ 3111, subd. (f).) 
9

Cal.App.4th 603, 612 [“The duty imposed by Family Code section 271 

requires a party to a dissolution action to be cooperative and work toward 

settlement of the litigation on pain of being required to share the party’s 

adversary’s litigation costs”].) And the Legislature wanted to deter the 

disclosure of information contained in child custody evaluations: “Because 

parties are ordered to undergo an evaluation, it is imperative that the 

confidential nature of a report be protected to [e]nsure [ ] the full cooperation 

of those involved and to encourage full disclosure to the professionals.” (Sen. 

Com. on Judiciary, Analysis of Assem. Bill No. 1877 (2007-2008 Reg. Sess.) as 

amended April 3, 2008, p. 3.) The Legislature was concerned that it was not 

clear how section 271 would benefit unrepresented parties, and that the 

limitations to attorney fees and costs provided for in section 271 would not be 

sufficient to deter repetition of the conduct prohibited by section 3111. (Sen. 

Com. on Judiciary, Analysis of Assem. Bill No. 1877 (2007-2008 Reg. Sess.) as 

amended April 3, 2008, pp. 3-4.) Thus, the intent of section 3111, 

subdivision (d) was to “establish[ ] clear penalties for distributing the 

information and ensuring that all interested parties are aware of the 

penalties.” (Assem. Com. on Appropriations, Analysis of Assem. Bill No. 1877 

(2007-2008 Reg. Sess.) as amended April 3, 2008, pp. 1-2.) The bill sought to 

“ensure that sensitive information obtained for the court remains 

confidential.” (Ibid.) 

The legislative purpose of section 3111, subdivision (d) was discussed in 

In re Marriage of Anka & Yeager (2019) 31 Cal.App.5th 1115 (Anka). There, 

the appellate court affirmed the imposition of sanctions against an attorney 

who violated section 3111 for asking questions in a deposition that elicited 

information from a child custody evaluation report ordered during a previous 

marriage dissolution. (Anka, at pp. 1118, 1123.) The attorney did not 
10

challenge the court’s authority to impose sanctions for violating section 3111, 

but the dicta is persuasive. The court explained that the attorney’s willful 

disclosure of confidential information protected by statute harmed the 

opposing litigant and also harmed “the entire process of child custody 

evaluation,” implicitly recognizing the need for truthful communications in 

evaluating a child’s best interests. (Anka, at p. 1122.)

If section 3111, like section 271, applied only to the parties to litigation, 

a party to the dispute could simply share the information with counsel for the 

purpose of disclosing it, and the attorney could then properly release 

confidential information from the previous dissolution matter without 

consequence. This outcome is inconsistent with the intended purpose of the 

sanctions because it would discourage honesty during the custody evaluation, 

making it more difficult for the court to determine the best interests of the 

child. (See § 3111, subd. (a); Cal. Rules of Court, rule 5.220; Ailanto 

Properties, Inc. v. City of Half Moon Bay (2006) 142 Cal.App.4th 572, 583 

[courts consider consequences that flow from a particular statutory 

interpretation].) 

Finally, Kovtun argues that if section 271 does not authorize sanctions 

to be paid by attorneys, neither does section 3111. Attorneys are subject to 

sanctions for engaging in the behavior prohibited by Family Code section 271, 

like failing to work toward settlement, via Code of Civil Procedure section 
11

128.5.6 (See In re Marriage of Quinlan (1989) 209 Cal.App.3d 1417, 1422.) 

Including attorneys again within Family Code section 271 would be 

redundant because the conduct detailed in Code of Civil Procedure 

section 128.5 and Family Code section 271 overlaps. The same is not true for 

including attorneys in Family Code section 3111 because the conduct detailed 

in section 3111 differs from what is detailed in other statutes.

b. California Rules of Court 

Kovtun also argues the definitions applicable in family court preclude 

attorneys from sanctions under section 3111 because, she contends, Rules of 

Court, Title Five, the Family and Juvenile rules, define “party” to exclude 

attorneys of record. (See Cal. Rules of Court, rule 5.1.)

California Rules of Court, rule 5.2(b)(6) defines “party” to include “a 

person appearing in an action,” and it explains that “[a]ny designation of a 

party encompasses the party’s attorney of record, including ‘party.’ ” Indeed, 

the definition of “party” in Title Five is consistent with the definition 

provided in Title One, which contains the rules applicable to all courts. 

California Rules of Court, rule 1.6(15), defines a “[p]arty” as “a person 

appearing in an action,” and it also notes that “party” “includes the party’s 

6 Code of Civil Procedure section 128.5 authorizes courts to impose 

sanctions against a party, the party’s attorney, or both for the use of bad faith 

actions or tactics that are frivolous or intended to cause delay. (Code of Civ. 

Proc., § 128.5, subd. (a).) The section applies to actions or tactics in civil 

cases filed on or after January 1, 2015. (Id., subd. (i).) Code of Civil 

Procedure section 128.7, which prohibits filings that are presented for an 

improper purpose, requires a moving party to give the opposing party 21 

days’ notice and an opportunity to correct any pleading errors. (Id.,

subds. (a), (b), (c)(1).) It applies to matters in which complaints or petitions 

have been filed on or after January 1, 1995. (Id., subd. (i).)
12

attorney of record.” Thus, Kovtun’s position on this point is incorrect; the 

Rules of Court define “party” to encompass a party’s attorney of record.7

B. Notice Complied with Due Process Standards

Kovtun contends she did not receive proper notice and therefore cannot 

be subject to sanctions in this matter. She maintains that the only way for 

Jennifer to meet the constitutional due process requirement was to file and 

personally serve a form FL-300, an RFO, naming Kovtun as the person 

against whom sanctions were sought, as required by California Rules of 

Court, rule 5.14. 

What constitutes proper notice under section 3111, subdivision (d) is a 

question of law, which we review de novo. (In re Marriage of Feldman (2007) 

153 Cal.App.4th 1470, 1479 (Feldman) [interpretation of statutes relied on to 

issue sanctions reviewed de novo].)

1. California Rules of Court, Rule 5.14 is Inapplicable

California Rules of Court, rule 5.14 is a sanction rule that applies to 

actions or proceedings brought under the Family Code for violating a rule of 

court and is “in addition to any other sanctions permitted by law.” (Cal. 

Rules of Court, rule 5.14(a), (c), (d)(1)(A).) Sanctions raised under this rule 

must be based on the “failure without good cause to comply with the 

applicable rules,” can be imposed only after the person seeking sanctions 

makes a request for order or the court issues an order to show cause (OSC), 

and must follow notice and an opportunity to be heard. (Id., rule 5.14(c), (d).) 

“Sanctions awardable under this rule” are in addition to reasonable expenses, 

including attorney fees and costs associated with the motion for sanctions. 

(Id., rule 5.14(e).) In other words, rule 5.14 applies to violations of the 

7 As we explain post, the authority to sanction an attorney in this 

situation is statutory. 
13

California Rules of Court, not statutes. (See, e.g., In re Marriage of Perow & 

Uzelac (2019) 31 Cal.App.5th 984, 991 (Perow) [discussing why section 271 

sanctions do not follow procedural requirements detailed in California Rules 

of Court, rule 5.14].) Here, the court awarded statutorily-authorized 

sanctions provided for in section 3111, which is one of the “other sanctions 

permitted by law” referenced in California Rules of Court, rule 5.14(c). Thus, 

the procedural requirements of rule 5.14, a rule which was not identified by 

the trial court as a basis for sanctions “in addition to” the section 3111, 

subdivision (d) sanctions, do not apply to this matter. 

2. Procedural Requirements

Kovtun contends Jennifer was required to file an RFO because she 

sought sanctions. However, when a party to a marital dissolution moves to 

modify an existing court order, the responding party may file a responsive 

declaration in which the party may request sanctions in addition to opposing 

the requested order. (Perow, supra, 31 Cal.App.5th at pp. 989-991 

[discussing procedural requirements for sanctions under section 271].)8 

“[B]ecause [a] sanction is necessarily responsive to the moving party’s conduct 

in litigating [a] motion, allowing a court to consider the moving party’s 

conduct at the same time as his motion without the need for a separately 

filed motion for fees also ‘avoid[s] possible duplicative, repetitious pleadings’ 

8 Although sections 271 and 3111 are distinguishable in scope and 

purpose, the procedural requirements surrounding section 271 nonetheless 

demonstrate that not all sanctions statutes provide mandatory procedural 

prerequisites with which strict compliance is required. Neither section 

requires use of a request for order or submission of the FL-300 to provide 

notice to the persons against whom sanctions are sought. (§§ 3111, subd. (d);

271, subd. (b) [requiring notice and an opportunity to be heard without 

reference to procedure].)
14

[Citation] . . . .” (Perow, at p. 991.) In other words, there is no requirement 

that a party seeking a sanction does so in a separate RFO when the issue can 

be efficiently and properly handled in conjunction with the original request 

for order.9

Mark’s August 2018 RFO sought joint legal and physical custody of 

their child. Along with the RFO, Mark filed a declaration in which he quoted 

from a court-ordered psychological evaluation of Jennifer completed during a 

previous dissolution proceeding to which Mark was not a party. In direct 

response to this RFO, Jennifer sought sanctions against Mark and his 

attorney, Kovtun, because the declaration disclosed the contents of the earlier 

court-ordered custody evaluation. Thus, Jennifer’s request was responsive to 

Mark’s and Kovtun’s conduct. 

Kovtun focuses on notice requirements detailed in Code of Civil 

Procedure section 128.5 and the Rules of Court. However, unlike those 

provisions, the text of Family Code section 3111, subdivision (d) does not 

9 Kovtun’s statement that sanctions imposed against a party in the 

absence of a motion are not authorized under (any section of the) Family 

Code is misleading. Mooney v. Superior Court (2016) 245 Cal.App.4th 523

does not hold that sanctions can only be imposed following a motion. Instead, 

the court had expressly disavowed any intent to impose sanctions and 

explained that an order awarding attorney’s fees pursuant to section 2032 

was not authorized because that section of the code requires a motion. 

(Mooney, at pp. 535-536.)
15

require a separate RFO or otherwise mandate a noticed motion.10 Family 

Code section 3111 does not detail any specific procedural requirements. And 

Kovtun’s argument that the notice here did not strictly comply with the 

notice requirements of the Rules of Court is not persuasive because, as we 

have explained, the Rules of Court are not the basis for the sanctions. Thus, 

we consider instead whether the notice Kovtun received complied with due 

process.

3. Due Process Requirements Were Met

Due process requires “notice, an opportunity to respond, and a 

hearing.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654.) The 

purpose of due process is to provide affected persons with the right to be 

heard “ ‘at a meaningful time and in a meaningful manner.’ ” (Rodriguez v. 

Department of Real Estate (1996) 51 Cal.App.4th 1289, 1296.) When 

sanctions are at issue, due process can be satisfied if the court gives a clear 

warning identifying the anticipated grounds for the sanctions or if those 

grounds are identified by the opposing party, and the court provides counsel 

with an opportunity to respond at least orally. (In re Marriage of Quinlan,

supra, 209 Cal.App.3d at p. 1423.)

Jennifer first requested sanctions February 20, 2019, in her response to 

Mark’s request for joint legal and physical custody of their child. Five days 

later, the parties appeared in court to address Mark’s RFO. At that hearing, 

the court set the matter for a bifurcated trial to address custody, visitation, 

10 Kovtun argues that because the FL-300 directs parties to file 

information regarding their requests for sanctions against each other, and 

does not provide an option for requesting sanctions from an attorney, 

attorneys cannot be ordered to pay sanctions. However, section 3111 does not 

specify that parties must file a form FL-300 at all. Thus, the omission of 

attorneys from the form holds no significance.
16

and sanctions, thereby notifying Kovtun that sanctions were at issue. Then, 

on May 30, 2019, the parties appeared for a trial readiness conference at 

which the court confirmed the issues for the trial were custody, visitation, 

child support, spousal support, and sanctions, again informing Kovtun of the 

possibility of sanctions and identifying when she would have an opportunity 

to be heard. 

Section B of Jennifer’s trial brief sought sanctions for the improper 

disclosure of a confidential report and detailed why sanctions against Kovtun 

would be appropriate in the circumstances, again highlighting the grounds 

for sanctions and identifying the time when Kovtun could be heard. Kovtun 

did not file a trial brief on Mark’s behalf, though that would have been one 

way for Kovtun to respond to the request for sanctions. Each of these 

instances—Jennifer’s response to Mark’s RFO, the court’s statements about 

the scope of issues, information at the trial readiness conference, and 

Jennifer’s trial brief—provided Kovtun actual notice that she could be subject 

to sanctions. Taken collectively, these events persuade us the notice 

requirements of due process were met. 

Kovtun does not claim the documents seeking sanctions were not 

served on her.11 Nor does she claim that the court did not address the issue 

of sanctions in the hearing or at the trial readiness conference. But she 

nonetheless claims in her declaration to her motion to set aside her sanctions 

that she “was not given notice.” The procedural facts outlined in the court’s 

order refute Kovtun’s claim.

11 Kovtun’s declaration in support of her motion to set aside the sanctions 

portion of the judgment states that she was not served personally with an 

RFO or noticed motion seeking monetary sanctions. 
17

Further, although Kovtun stated in her declaration that the court did 

not provide her an opportunity to be heard on the issue of sanctions before it 

issued its ruling, she points to no evidence to support this allegation beyond 

the bald statement in her declaration. Certainly, Kovtun could have been 

heard in the trial brief she failed to file. 

Moreover, the information before us indicates the issue of sanctions 

was one to be addressed at trial. Kovtun fails to respond to the reviewing 

court’s comment that evidence was “entirely within [Kovtun’s] control, but 

she made no effort to introduce such evidence [regarding sanctions].” Kovtun 

does not direct us to evidence in the record which demonstrates the issue of 

sanctions was handled at trial in a way that precluded Kovtun from an 

opportunity to be heard.12 To the extent that Kovtun’s argument rests on 

the events of trial, it is her burden to present a record from which we can 

evaluate whether there has been error. (Niederer v. Ferreira (1987) 189 

Cal.App.3d 1485, 1509.) The “failure to do so results in affirmance.” (Ibid.) 

12 In Kovtun’s motion to vacate the sanctions portion of the judgment, she 

argues that she made objections “as to herself” to the admission of a 

transcript of a meeting that occurred on September 28, 2017, and states that 

the court overruled those objections. This information suggests Kovtun had 

an opportunity to be heard regarding her own interests. It also appears to 

contradict her statement in her related declaration that “the issue of . . . the 

alleged unauthorized disclosure was never raised in trial, nor was it ever 

discussed.” It is unclear if a Reporter’s Transcript from the trial exists. No 

such transcript was requested by Kovtun’s designation of record on appeal. 

Nor did Kovtun request the minutes from the trial, which may have shed 

light more specifically on what occurred. When there is no reporter’s 

transcript and no error is evident from the face of the appellate record, we 

presume that the unreported trial testimony would demonstrate absence of 

error. (In re Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
18

C. The Court Exercised Proper Jurisdiction to Impose Sanctions

Next, Kovtun contends sanctions were improper because the court did 

not have personal jurisdiction over her. She argues that personal jurisdiction 

only attaches when a person is personally served with notice of possible 

sanctions. We review the denial of request to vacate a judgment for lack of 

jurisdiction de novo. (People v. North River Ins. Co. (2020) 48 Cal.App.5th 

226, 232 [voidness is a legal question reviewed de novo].) 

Kovtun misunderstands the source of the court’s authority here. An 

attorney is an officer of the court, “generally subject to the court’s control as a 

‘person . . . connected with a judicial proceeding before [the court].’ ” 

(Durdines v. Superior Court (1999) 76 Cal.App.4th 247, 256, citing Code of 

Civ. Proc., § 128, subd. (a)(5) [explaining court’s power includes controlling 

conduct of ministerial officers in furtherance of justice].) As the Supreme 

Court explained in Bauguess v. Paine (1978) 22 Cal.3d 626 (Bauguess), 

“under certain circumstances both trial and appellate courts are authorized 

to order counsel to pay the opposing party’s attorney’s fees as a sanction for 

counsel’s improper conduct.” (Id. at p. 635, fn. omitted.) In doing so, courts 

draw on “equitable power derived from the historic power of equity courts 

[citations], and supervisory or administrative powers which all courts possess 

to enable them to carry out their duties [citations].” (Ibid.) 

The controversy in Bauguess asked the Supreme Court to evaluate 

whether a court could award attorney fee sanctions under its supervisory 

power absent statutory authority, and it concluded courts could not. 

(Bauguess, supra, 22 Cal.3d at pp. 636-637.) But clear from the court’s 

discussion was that courts have inherent power to punish via the contempt 

process, which incorporates procedural safeguards, and that the Legislature 
19

can provide by statute the authority to impose sanctions.13 (Id. at pp. 638-

639.) Such is the case here. Section 3111 grants the court the authority to 

impose sanctions on counsel.

Finally, despite arguing that the court lacked personal jurisdiction over 

her for lack of personal service, Kovtun does not direct us to information in 

the record that demonstrates she was not personally served with the notice of 

the sanctions via Jennifer’s trial brief; nor does she otherwise explain why 

personal service of that document did not comply with her due process rights 

of notice and an opportunity to be heard.14 

D. Code of Civil Procedure Section 128.7 Does Not Apply

Kovtun contends the court and Jennifer were required to comply with 

Code of Civil Procedure section 128.7 and its safe harbor provisions before 

sanctions against her could issue. She further contends that substantial 

compliance with the notice requirements of Code of Civil Procedure 

section 128.7 is insufficient. 

1. Code of Civil Procedure Section 128.7

Code of Civil Procedure section 128.7 requires attorneys to certify that 

a motion or similar document filed with the court is not being used for an 

13 The Legislature subsequently enacted Code of Civil Procedure section 

128.5 in response to Bauguess, broadening the power of trial courts by 

authorizing additional monetary sanctions. (Olmstead v. Arthur J. 

Gallagher & Co. (2004) 32 Cal.4th 804, 809.) 

14 Kovtun seems to suggest the court should have applied Code of Civil 

Procedure section 128.7 instead of Family Code section 3111. However, it is 

unclear why the court’s use of Code of Civil Procedure section 128.7 addresses 

her argument regarding personal jurisdiction. Although Code of Civil 

Procedure section 128.7 requires a noticed motion, it does not mandate 

personal service, which is what Kovtun contends must occur for personal 

jurisdiction to attach. (See id., subd. (c)(1).)
20

improper purpose, is not frivolous, and includes evidentiary support or likely 

will upon further investigation or discovery. (Code of Civ. Proc., § 128.7, 

subds. (a)-(b)(3).) It also offers a safe harbor provision so that an attorney 

has an opportunity to “avoid sanctions by withdrawing or otherwise 

appropriately correcting the offending paper, claim, defense, contention, 

allegation, or denial.” (Barnes v. Department of Corrections (1999) 74 

Cal.App.4th 126, 132 (Barnes).) The party seeking sanctions must serve a 

noticed motion on the offending attorney, or the court must enter an order 

describing the offending conduct and stating it will issue an OSC for why the 

challenged conduct has not violated the law. (Code of Civ. Proc., § 128.7, 

subds. (c)(1)-(2).) “By withdrawing specious or meritless legal contentions, 

pointless and time-consuming litigation is avoided. Failing to comply with 

procedures designed to minimize or reduce meritless litigation, in effect 

promotes it.” (Barnes, at p. 132.) 

Additionally, “ ‘the “safe harbor” provision works in conjunction with 

the duty of candor, giving the proponent of a questionable claim an 

opportunity to assess the claim’s validity without immediate repercussion.” 

[Citation.]’ ” (Cromwell v. Cummings (1998) 65 Cal.App.4th Supp. 10, 14.) 

The safe harbor provision helps prevent the identified harm of pursuing 

meritless legal contentions. Accordingly, notice requirements are strictly 

construed. (Barnes, supra, 74 Cal.App.4th at p. 136.) 

2. Inapplicability of Code of Civil Procedure Section 128.7

The premise of Kovtun’s argument is that because section 3111, 

subdivision (d) does not apply to attorneys, the only way the court could 

properly sanction her would be via Code of Civil Procedure section 128.7, 

which applies to attorneys and unrepresented parties. 
21

Kovtun cites no authority for this conclusion, and she offers no 

explanation for why a safe harbor would be appropriate in the present 

circumstances.15 Further, as we previously concluded, Family Code 

section 3111, subdivision (d) applies to attorneys; thus, Code of Civil 

Procedure section 128.7 is not the only procedural mechanism available to 

courts to impose sanctions on attorneys, as Kovtun contends. 

We note, too, that a safe harbor provision would not be appropriate 

here because the harm Family Code section 3111 seeks to prevent is not the 

reduction of meritless litigation, which Code of Civil Procedure section 128.7 

seeks to avoid. (Barnes, supra, 74 Cal.App.4th at p. 132.) Instead it is the 

disclosure itself that negatively impacts the process of determining custody in 

the best interests of the child. (See Sen. Com. on Judiciary, Analysis of 

Assem. Bill No. 1877 (2007-2008 Reg. Sess.) as amended April 3, 2008, p. 3; 

Anka, supra, 31 Cal.App.5th at p. 1122.) Providing an attorney with the 

opportunity to retract a statement within a predetermined time does not 

avoid the harm of disclosure identified by Family Code sections 3111 or 

3025.5.

Here, the filing revealed confidential information contained in a courtordered psychological evaluation to help it determine the custody 

15 Kovtun’s reliance on Burkle v. Burkle (2006) 144 Cal.App.4th 387 

(Burkle) is misplaced. There the court did not hold that “any sanctions 

sought against the attorney” must be pursued via Code of Civil Procedure 

section 128.7, as Kovtun alleges in her opening brief. In Burkle, the court 

considered whether the filing of a civil action could warrant sanctions in a 

dissolution proceeding under Code of Civil Procedure section 128.7 and 

concluded it could. (Burkle, at pp. 393, 399-401.) Although the court 

separately noted in a footnote that attorneys cannot be sanctioned under 

Family Code section 271, the court there did not draw any comparison 

between Family Code sections 271 and 3111. (Burkle, at p. 403, fn.7.)
22

arrangements that were in the best interest of children in a prior marriage 

and custody dispute. Once that material had been revealed, the information 

became public—the very result the Legislature was concerned about when it 

adopted section 3111, subdivision (d). (Assem. Com. on Appropriations, 

Analysis of Assem. Bill No. 1877 (2007-2008 Reg. Sess.) as amended April 3, 

2008, p. 1 [commenting that “confidentiality laws surrounding court ordered 

child custody evaluations are not strong enough to stop parents from widely 

and inappropriately disseminating the information contained in the 

reports”].) 

E. Admissibility of Recording

1. Additional Facts

Jennifer filed for a restraining order against Mark on May 25, 2017. 

Her request alleged she experienced “physical abuse with injuries from 

strangulation and hitting by [Mark],” and she provided photographs of her 

injuries. Mark did not respond to Jennifer’s request for a temporary 

restraining order and instead requested to go forward with the hearing. On 

June 13, 2017, the court issued a five-year restraining order. It prohibited 

Mark from contacting Jennifer or their child other than for court-ordered 

visitation, and it authorized Jennifer to record any violations of the 

restraining order. 

On September 13, 2017, Mark pled guilty to violating Penal Code 

section 243, subdivision (e)(1), misdemeanor battery on a spouse. The court 

issued a criminal protective order against Mark. The order contained the 

same terms as the restraining order, prohibiting Mark from contacting 

Jennifer or their child other than peacefully for visitation, and it authorized 

Jennifer to record any violations. Kovtun was Mark’s attorney of record in 

the criminal case. 
23

On September 28, 2017, Jennifer attended a meeting at Kovtun’s office, 

with Mark and Kovtun. Jennifer recorded the meeting. During the course of 

the meeting, Kovtun told Jennifer she was a liar and a bad and unfit mother 

who was harmful to their child. When Jennifer said if Kovtun were not 

there, Mark would probably be beating her, Kovtun responded, “You know 

what? I would be.” Kovtun called Jennifer “nuts,” said Jennifer was “out of 

[her] mind,” commented that living with Jennifer was like dealing with a 

lunatic, and called Jennifer crazy. 

Mark berated Jennifer, telling her that he was going to take their child 

away and get full custody, directing Jennifer to stop crying, and admonishing 

her that if she loved him, Jennifer would sign a custody agreement that 

would give Mark 50 percent custody. Kovtun repeatedly supported Mark’s 

statements, commenting, “Yeah.” 

As a consequence of the September 28, 2017 meeting, Mark pled guilty 

to violating a court order (Pen. Code, § 166, subd. (c)(1)) in October 2018. 

Also in October 2018, Jennifer filed a lawsuit in civil court against 

Kovtun alleging causes of action arising out of the conduct that occurred at 

the September 28, 2017 meeting. In connection with that lawsuit, Kovtun 

filed an anti-SLAPP motion, which the trial court denied.16 That trial court 

concluded the transcript and recording of the conversation were admissible 

under the facts of that case. 

Separately, on August 21, 2018, Mark filed the RFO for joint legal and 

physical custody of their child. Jennifer opposed the request and sought 

sanctions for violations of sections 3111 and 3025.5 in the RFO filing. 

16 Kovtun appealed the court’s denial of a second anti-SLAPP motion in 

that matter, Shenefield v. Kovtun, case No. D078616. 
24

The court that imposed sanctions on Kovtun as part of the Final Ruling 

discussed the contents of the transcript of the September 28, 2017 

conversation. The trial court found that Kovtun is a seasoned attorney. The 

court stated that Kovtun acknowledged that she is a seasoned attorney to 

Jennifer during the September 28, 2017 conversation. It concluded that as a 

seasoned attorney, Kovtun should have been aware of sections 3111, 

subdivision (d) and 3025.5, subdivision (a)(1). The trial court also found 

Kovtun was reckless in filing the documentation, then stated it was “hard 

pressed to find that such disclosure was not intentional based on the 

statements made by [Mark]’s counsel to [Jennifer] at the meeting in her office 

on September 28, 2017.” The court noted that Kovtun’s statements were 

made after a restraining order was issued against Mark. 

The court found that Kovtun intended for the court to rely on the 

confidential Evidence Code section 730 custody evaluation from an unrelated 

case. It ultimately determined that “by disclosing in court pleadings portions 

of a confidential report with [Jennifer’s] private information,” Kovtun 

“cause[d] harm . . . not only to [Jennifer] and her children, including the child 

she shares with Respondent, and her former husband,” “but also to the entire 

process of litigation . . . .” 

In her motion to vacate the sanctions portion of the judgment against 

her, Kovtun argued the court improperly considered the contents of the 

September 28, 2017 meeting because the recording was inadmissible. 

In her opposition, Jennifer requested judicial notice of the civil court’s 

conclusion that the recording was admissible. The court that denied Kovtun’s 

motion to vacate the sanctions portion of the judgment did not expressly rule 

on the request for judicial notice. Nor did it reference the transcript in its 

denial. 
25

2. Admissibility of the Transcript

Kovtun argues that the sanctioning court improperly admitted and 

considered the transcript of the recording of the September 28, 2017 meeting 

at Kovtun’s office. She maintains that Jennifer violated Penal Code 

section 632 by recording the conversation because the communication was 

confidential, and such a recording is not admissible in a judicial proceeding. 

She further contends that her statements during the meeting are protected 

by the litigation privilege. 

We review the admissibility of evidence for an abuse of discretion (Evid. 

Code, § 310; People v. Waidla (2000) 22 Cal. 4th 690, 717 [“Broadly speaking, 

an appellate court applies the abuse of discretion standard of review to any 

ruling by a trial court on the admissibility of evidence”]; People v. Hall (2010) 

187 Cal.App.4th 282, 294.) “A ruling that constitutes an abuse of discretion 

has been described as one that is ‘so irrational or arbitrary that no reasonable 

person could agree with it.’ ” (Sargon Enterprises, Inc. v. University of 

Southern California (2012) 55 Cal.4th 747, 773 (Sargon Enterprises), quoting 

People v. Carmony (2004) 33 Cal.4th 367, 377.) Additionally, an “ ‘[a]ction 

that transgresses the confines of the applicable principles of law is outside 

the scope of discretion and we call such action an “abuse” of discretion.’ 

[Citation.]” (Horsford v. Board of Trustees of California State University 

(2005) 132 Cal.App.4th 359, 393 (Horsford).) 

Penal Code section 632 establishes a cause of action for invasion of 

privacy when a person records a confidential communication without the 

consent of all parties. (Pen. Code, § 632, subd. (a).) It prohibits evidence 

obtained through the recording of a confidential communication in violation 

of Penal Code section 632 from use in any judicial proceeding, except as proof 
26

for violating Penal Code section 632.17 (Id., subd. (d).) Its definition of 

“confidential communication” excludes “a communication made . . . in 

any . . . circumstance in which the parties to the communication may 

reasonably expect that the communication may be overheard or recorded.” 

(Id., subd. (c).) The standard for confidentiality is whether there is “an 

objectively reasonable expectation that the conversation is not being 

overheard or recorded.” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 777

(Flanagan).) 

Kovtun was Mark’s criminal defense attorney and represented him 

when he pled guilty to misdemeanor battery on a spouse on September 13, 

2017. And she was his attorney when the court issued the corresponding 

protective order. Thus, she was aware of the protective order when she 

participated in the September 28, 2017 meeting, and she was aware that 

Jennifer had the right to record communications with Mark under the terms 

17 Other sections of the Penal Code specifically permit victims of domestic 

violence to record confidential communications, and they provide that 

evidence from the recordings are admissible in actions seeking restraining 

orders or prosecuting domestic violence. (Pen. Code, §§ 632.01, 

subd. (d)(1)(F), 633.5.) Penal Code section 632.01, subdivision (d)(1)(F)

permits the disclosure or distribution of a confidential communication by “[a] 

victim of domestic violence recording a prohibited communication 

made . . . by the perpetrator pursuant to [Penal Code] Section 633.6,” a 

section which separately allows a victim seeking a domestic violence 

restraining order who reasonably believes a confidential communication 

contains evidence germane to the restraining order to record the 

communication for the purpose of providing the evidence to the court. (Pen. 

Code, § 632.01, subds. (d)(1)(A), (F); 633.6.) And Penal Code section 633.5 

separately permits a party to a confidential recording to record the 

communication for the purpose of obtaining evidence reasonably believed to 

relate to the commission of another party to the communication of the crime 

of domestic violence. It also permits the admission of evidence from the 

recording to be used in a prosecution of such a crime. 
27

of the restraining and protective orders. The court’s February 27, 2020 Final 

Ruling noted that the September 28, 2017 meeting occurred after the 

restraining and protective orders were issued against Mark, recognizing that 

Kovtun knew Jennifer was authorized to record communications with Mark 

when Kovtun hosted the meeting at her office. 

Kovtun’s knowledge about Jennifer’s right to record communications 

with Mark casts doubt on her claim that the communication was confidential. 

Because Kovtun knew Jennifer had a right to record communications that 

could evidence Mark violating the protective orders, it was not objectively 

reasonable for Kovtun to believe the conversation she participated in could 

not be recorded.18 Absent such an expectation, the communication could not 

be characterized as confidential, and it therefore does not fall within the 

restrictions detailed in Penal Code section 632.

Kovtun emphasizes the language in Penal Code section 632 that 

prohibits the use of evidence obtained through the recording of a confidential 

communication in violation of Penal Code section 632 in any judicial 

proceeding. However, Kovtun’s emphasis is misplaced. The statute only 

prohibits the admission of confidential communications in judicial 

proceedings, and Kovtun fails to explain why the communication was 

confidential, i.e., why there was an objectively reasonable expectation that 

the conversation was not being recorded. (See Flanagan, supra, 27 Cal.4th at 

pp. 777.) Thus, the court’s admission of the transcript did not abuse its 

discretion because it did not “ ‘transgress the confines of the applicable 

principles of law’ ” (Horsford, supra, 132 Cal.App.4th at p. 393) and was not 

18 In Kovtun’s declaration to support her motion to set aside the sanctions 

portion of the judgment, she states that she suspected Jennifer was “playing 

to a recording device” during the September 28, 2017 meeting. 
28

otherwise irrational or arbitrary such that “ ‘no reasonable person could 

agree with it.’ ” (Sargon Enterprises, supra, 55 Cal.4th at p. 773.) 

Even had the court abused its discretion by admitting the transcript of 

the meeting, Kovtun does not identify any resulting prejudice. From the 

transcript, the court confirmed that Kovtun is a seasoned family law 

attorney, a finding Kovtun does not dispute.19 On that basis, the court 

concluded that Kovtun should have been aware of the Family Code 

prohibition on disclosing the confidential custody communication and 

determined that Kovtun acted at least recklessly. The sanctioning court next 

provided additional details from the transcript of the September 28, 2017 

meeting to explain why it concluded Kovtun’s actions were likely intentional. 

But those conclusions were not necessary to determine Kovtun violated 

section 3111. (See § 3111, subd. (f) [explaining a disclosure is unwarranted if 

either reckless or malicious and not in the best interests of the child].) 

Further, the record supports the sanctioning court’s conclusion that 

Kovtun acted at least recklessly. Mark’s declaration states that it is quoting 

from a court-ordered evaluation from a prior marital dissolution, published 

December 11, 2012. And in her motion to vacate the sanctions, Kovtun as 

much as concedes she was aware that the filing included quotations taken 

from Jennifer’s previous court-ordered evaluation when she offers 

19 Kovtun’s declaration in support of her motion to vacate the sanctions 

portion of the judgment indicates she has been practicing law since 1995. 
29

justification for why doing so was appropriate (and presumably therefore 

warranted).20 

Finally, although Kovtun claims the substance of the communication is 

inadmissible because it is protected by the litigation privilege detailed in 

Civil Code section 47, subdivision (b), the incomplete nature of this argument 

waives it. She does not explain in her opening brief why the contents of the 

communication in this context are privileged or how the privilege impacts the 

court’s use of the information to help assess her potential motives in filing 

documents that expressly disclosed the contents of the court-ordered 

evaluation. “Appellate briefs must provide argument and legal authority for 

the positions taken. ‘When an appellant fails to raise a point, or asserts it 

but fails to support it with reasoned argument and citations to authority, we 

treat the point as waived. [Citations.]’ ” (Nelson v. Avondale Homeowners 

Assn. (2009) 172 Cal.App.4th 857, 862.) It is insufficient to simply state 

general legal principles or legal authority; rather, an appellant must offer 

argument as to how the court erred and apply the law to the circumstances 

before the court. (Landry v. Berryessa Union School Dist. (1995) 39 

20 Kovtun argues the information contained in that report was 

exculpatory to the criminal charges against Mark and therefore she could 

have subpoenaed the court-appointed evaluator to testify in the criminal 

case. The implication is that the same information could be quoted in the 

custody action. However, this disregards the different contexts of a criminal 

case, where there would have been at least an opportunity for crossexamination, and a dissolution matter, in which the information was publicly 

revealed without warning or opportunity to question the evaluator and 

without placement in the confidential portion of the court file of the 

proceeding (see § 3025.5). Kovtun’s argument also does nothing to disprove 

the court’s conclusion here that she knew the information was confidential 

when she filed the declaration disclosing its contents and serves to support 

the sanctioning court’s conclusion that she intended for the court to rely on 

that information in reaching its decision. 
30

Cal.App.4th 691, 699.) Moreover, although she develops her position in her 

reply brief, when she argues the litigation privilege is absolute and protects 

her from sanctions in connection with that communication,21 we deem the

argument forfeited for failure to raise it in the opening brief. (Newton, at 

p. 1005.) 

Even were we to conclude the litigation privilege made the court’s use 

of the transcript improper, it would not persuade us that the order denying 

the motion to vacate the sanctions portion of the judgment was erroneous. 

The sanctions did not arise out of Kovtun’s conduct during the recorded 

meeting. The court sanctioned Kovtun because of her participation in the 

disclosure of confidential information in violation of sections 3111, 

subdivision (d) and 3025.5. The court considered the contents of the 

communication to support its conclusion that Kovtun acted intentionally and 

recklessly, but the court primarily based its conclusion that Kovtun acted 

recklessly on its evaluation that Kovtun is an experienced family law 

attorney. As we explained ante, even without that transcript, the court’s 

conclusion is supported by substantial evidence. (See Feldman, supra, 153 

Cal.App.4th at p. 1479 [findings of fact forming basis for sanctions award 

reviewed for substantial evidence].)

21 Kovtun raises the litigation privilege as a defense to sanctions for 

disclosing the confidential contents of the Evidence Code section 730 custody

evaluation for the first time on appeal in her reply brief. Accordingly, we 

deem the argument forfeited. (People v. Newton (2007) 155 Cal.App.4th 1000, 

1005 (Newton).)
31

DISPOSITION

The order is affirmed. Parties to bear their own costs on appeal.

HUFFMAN, Acting P. J.

WE CONCUR:

O'ROURKE, J.

GUERRERO, J.