Filed 10/29/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

KIM LEVINE et al.,

 Plaintiffs,

v.

JANET BERSCHNEIDER,

 Defendant and Respondent;

JOHN B. RICHARDS,

 Objector and Appellant.

2d Civil No. B300824

(Super. Ct. No. 17CV03278)

(Santa Barbara County)

John B. Richards, an attorney, purports to appeal from the 

trial court’s order finding him in contempt. He also appeals from 

the order to “pay monetary sanctions in the amount of $5,310.00 

for his lack of candor [with the trial court about the fact that] 

settlement funds had been paid.” He contends the trial court 

lacked both personal and subject matter jurisdiction to impose 

sanctions against him. We dismiss the attempt to appeal from 

the contempt finding and affirm the sanctions order.
2

Facts

Appellant represented tenants in litigation against their 

landlord, respondent Janet Berschneider. Harry Safarian

represented respondent. The lawsuit settled. Because one of the 

plaintiffs was a minor, the settlement required approval from the 

trial court. On April 17, 2019, the trial court approved the 

minor’s compromise. On May 22, 2019, appellant filed an ex 

parte application to shorten time on a motion to enforce the 

settlement agreement. He contended respondent and her counsel 

were taking too long to pay the plaintiffs the amounts agreed to 

in their settlement. The trial court set the matter for hearing on 

June 7, 2019. On June 3, 2019, appellant received checks from 

Safarian’s office, paying the settlement in full. 

Appellant nevertheless appeared at the June 7 hearing. He 

told the trial court, “I haven’t received word from opposing 

counsel [Safarian]. I don’t know – has there been any 

communication with the Court?” The court said there had not 

been. Appellant confirmed that he served opposing counsel by 

email with the motion to enforce the settlement agreement.

The trial court granted the motion. Its order found 

Safarian “in contempt for willfully failing to comply with [the] 

April 17, 2019 order,” and ordered respondent “to immediately 

disburse” the settlement funds. The trial court also ordered 

Safarian to pay monetary sanctions of $4,630.30 to the plaintiffs

within 10 days. At no time during the brief June 7 hearing did 

appellant inform the trial court that the settlement had already 

been paid in full.

Three days later, respondent filed an ex parte application 

for relief from the June 7 order pursuant to Code of Civil 
3

Procedure section 4731; for reconsideration of the order pursuant 

to §1008; for an order to show cause against appellant for 

presenting false information to the court; and alternatively for an 

order staying the June 7 order pending hearing on a regularly 

noticed motion. Respondent’s counsel explained that he did not

attend the June 7 hearing because a staff member mistakenly 

informed him the hearing had been taken off calendar. 

Respondent requested the trial court reconsider its order and 

consider sanctioning appellant because he did not inform the 

court that he received the settlement checks before the June 7 

hearing.

Appellant filed a written opposition to the ex parte 

application in which he contended there was no basis for relief 

under either section 473 or section 1008. He also contended that 

his statements at the June 7 hearing were not false because the 

trial court never asked him whether he had received the 

settlement checks. 

Appellant made what he referred to as a special 

appearance at the June 12 hearing on respondent’s ex parte 

application. He argued the trial court lacked personal 

jurisdiction over him because he had not been properly served 

with the ex parte application. He also argued the court lacked 

subject matter jurisdiction because there was no statutory basis 

for an award of sanctions against him.

The trial court took the matter under submission. On June 

14, it entered an order vacating the sanctions against Safarian.

It also issued an order to show cause against appellant “based 

1 All further statutory references are to the Code of Civil 

Procedure.
4

upon his lack of candor with the Court,” and set a hearing date 

and a briefing schedule. 

On June 21, appellant filed an opposition to the motion for 

reconsideration, which the trial court had already granted, and to

the order to show cause. He again argued that he was not subject 

to sanctions because he made no false statements to the trial 

court. Appellant did not repeat the jurisdictional arguments he 

made at the June 12 hearing.

On July 15, the trial court filed its Order After Hearing in 

which it found appellant in contempt based on his lack of candor 

at the June 7 hearing and ordered him to pay sanctions of $5,310 

to Safarian. It found that it had personal jurisdiction over 

appellant because his June 21 written opposition to the Order to 

Show Cause was a general appearance. (§410.50, subd. (a).) The 

trial court also concluded it had subject matter jurisdiction 

because appellant’s lack of candor at the June 7 hearing was both 

contemptuous and conduct in bad faith within in the meaning of 

sections 128.5 and 1209. 

Discussion

Contempt Appealability. 

A trial court’s judgment or order in a contempt matter is 

“final and conclusive.” (§1222.) It is not, however, appealable. 

(§904.1, subd. (a)(1).) Review of a contempt order is available 

only by petition for extraordinary writ. (In re Buckley (1973) 10 

Cal.3d 237, 240; Davidson v. Superior Court (City of Mendota) 

(1999) 70 Cal.App.4th 514, 522.) We decline to construe the 

notice of appeal as a petition for an extraordinary writ. (Imuta v. 

Nakano (1991) 233 Cal.App.3d 1570, 1584.) 
5

Sanctions Appealability. 

The trial court imposed sanctions pursuant to section 

128.5. An order directing payment of monetary sanctions is 

directly appealable, where, as here, the amount of the sanction 

exceeds $5,000. (§904.1, subd. (a)(12).)

Counsel’s Duty of Candor.

In his briefs on appeal, and again at oral argument, 

appellant protested that he made no false or misleading 

statements to the trial court because the judge never asked 

whether he had received the settlement checks. He contends that 

he was entitled to sanctions against respondent’s counsel, even if 

the settlement was paid, because he incurred fees to demand 

payment and to file the motion the enforce the settlement 

agreement. According to appellant, the trial court judge had a 

duty to ask whether the settlement had been paid, if that fact 

was important to the judge. We wholeheartedly reject this 

reasoning. It was not the trial court’s duty to inquire whether 

any material fact had changed since appellant filed the motion. 

Instead, appellant’s duty of candor required him to inform the 

court that the settlement had been paid. 

An attorney is an officer of the court and owes the court a 

duty of candor. (In re Reno (2012) 55 Cal.4th 428, 510; Roche v. 

Hyde (2020) 51 Cal.App.5th 757, 817.) This means that, “A 

lawyer shall not . . . knowingly make a false statement of fact or 

law to a tribunal or fail to correct a false statement of material 

fact or law previously made to the tribunal by the lawyer.” (Cal. 

Rules Prof. Conduct, rule 3.3, subd. (a)(1).) In a similar vein, 

section 6068 of the Business and Professions Code explains that

every attorney has a duty “never to seek to mislead the judge or 
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any judicial officer by an artifice or false statement of fact or 

law.” (Bus. & Prof. Code, §6068, subd. (d).)

The duty of candor is not simply an obligation to answer 

honestly when asked a direct question by the trial court. It 

includes an affirmative duty to inform the court when a material 

statement of fact or law has become false or misleading in light of 

subsequent events. (In re Reno, supra, 55 Cal.4th at pp. 510-511 

[duty to inform court when a claim in a writ petition is subject to 

a procedural bar]; Love v. State Dept. of Education (2018) 29 

Cal.App.5th 980, 990 [duty to acknowledge contrary authority]; 

Jackson v. State Bar of California (1979) 23 Cal.3d 509, 513 [“The 

representation to a court of facts known to be false is presumed 

intentional and is a violation of the attorney’s duties as an officer 

of the court”].)

In Grove v. State Bar of California (1965) 63 Cal.2d 312, 

our California Supreme Court dealt with an attorney who was 

less than candid with the trial court. The attorney was twice 

informed by opposing counsel that he could not attend a certain 

hearing. The attorney allowed the trial court to believe that the 

matter was uncontested. The offending attorney “contends that 

the failure to convey . . . [opposing counsel’s request for a 

continuance] does not constitute misleading ‘the judge or any 

judicial officer by an artifice or false statement of fact or law.’ 

(Bus. & Prof. Code, section 6068, subd. (d).) There is no merit to 

this contention. The concealment of a request for a continuance 

misleads the judge as effectively as a false statement that there 

was no request. No distinction can therefore be drawn among 

concealment, half-truth, and false statement of fact. [Citation.] 

‘It is the endeavor to secure an advantage by means of falsity 

which is denounced.’ [Citation.]” (Id. at p. 315.)
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So here. Counsel’s decision to not tell the trial court that 

he had received “word” from opposing counsel, was a concealment

and a “half-truth.” This violates the attorney’s obligation as an 

officer of the court to be candid with the court. This was intended 

to secure an advantage and it worked, temporarily. Counsel had 

received the settlement checks. This is not an insignificant fact. 

Every trial court hearing a similar motion would want to be 

apprised of this development.

Subject Matter Jurisdiction. 

Appellant contends the trial court lacked subject matter 

jurisdiction to award sanctions against him because there is no 

statutory basis for the award and because he did not make 

misleading or false statements to the trial court. He is incorrect.

First, section 128.5 authorizes the trial court to order an 

attorney “to pay the reasonable expenses, including attorney’s 

fees, incurred by another party as a result of actions or tactics, 

made in bath faith, that are frivolous or solely intended to cause 

unnecessary delay.” (Id., subd. (a).)2 A misrepresentation of 

material fact is subject to sanction under section 128.5. (Young v. 

Rosenthal (1989) 212 Cal.App.3d 96, 128.)

At the June 7 hearing, appellant told the trial court that he 

had not “received word” from his opposing counsel, even though 

they had exchanged numerous emails and the settlement was 

paid in full four days before the hearing. When the trial court 

ordered opposing counsel to immediately disburse the settlement 

funds, appellant failed to inform the court that its order was moot 

because the funds had already been received. The trial court did 

2 The statute clarifies that an action is “frivolous” where it 

is “totally and completely without merit or for the sole purpose of 

harassing an opposing party.” (§ 128.5, subd. (b)(2).)
8

not abuse its broad discretion when it awarded sanctions against 

appellant based on these misrepresentations of material facts. 

(Wallis v. PHL Associates, Inc. (2008) 168 Cal.App.4th 882, 893.)

Notice Adequacy.

Appellant contends respondent’s Application for Ex Parte 

Order did not provide him with adequate notice of the factual 

basis for the requested order to show cause. But appellant never 

objected to the alleged lack of notice in the trial court. Instead, 

he opposed respondent’s ex parte application on the merits, 

contending his statements were not false and that his receipt of 

the settlement funds did not moot his request for sanctions 

against Safarian. “In failing to raise the issue of inadequate 

notice, [appellant] waived any objection he may have had upon 

that ground.” (M.E. Gray Co. v. Gray (1985) 163 Cal.App.3d 

1025, 1034.) 

Had the contention not been waived, we would reject it. 

The June 10 ex parte application asked the trial court to issue an 

“order to show cause against attorney John Richards for 

presenting false information to the court . . . .” (Bold and 

capitalization omitted.) It also offered a detailed factual basis for 

the requested sanctions. Appellant received adequate notice of 

the factual and legal bases upon which respondent sought 

sanctions against him.

Personal Jurisdiction. 

Appellant contends the trial court lacked personal 

jurisdiction over him because he was not personally served with 

the ex parte application and order to show cause. “A general 

appearance by a party is equivalent to personal service of 

summons on such party.” (§ 410.50, subd. (a).) Appellant made a 

general appearance when he filed a written opposition to the ex 
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parte application in which he addressed the merits of the 

application and order to show cause. “A party whose 

participation in an action is limited to challenging the court’s 

personal jurisdiction does not make a general appearance. Other 

forms of participation, however, such as . . . opposing a motion on 

the merits, ordinarily constitute a general appearance.” (Serrano 

v. Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014,

1029.) The trial court properly exercised personal jurisdiction 

over appellant.

Conclusion

The judgment (Order After Hearing) dated July 15, 2019 is 

affirmed. Costs on appeal to respondent. Pursuant to Business 

and Professions Code section 6086.7, subdivision (a)(3), upon 

issuance of the remittitur, the clerk is directed to forward a copy 

of this opinion to the State Bar of California. Pursuant to 

Business and Professions Code section 6086.7, subdivision (b), 

the clerk is directed to notify appellant that this matter has been 

referred to the State Bar.

CERTIFIED FOR PUBLICATION.

YEGAN, J.

We concur:

GILBERT, P. J.

TANGEMAN, J.
Donna D. Geck, Judge

Superior Court County of Santa Barbara

______________________________

John B. Richards, in propria persona, for Appellant.

The Safarian Firm, Harry A. Safarian and Christina S. 

Karayan for Defendant and Respondent.