I.

FACTUAL AND PROCEDURAL BACKGROUND

After a marriage of 19 years, George and Deamon separated on March 23, 2015,

and dissolution proceedings were commenced. The parties attended a mandatory

settlement conference on June 1, 2017, at which a settlement was reached as to all of the

disputed issues between the parties. The terms of the settlement were put on the record

before the family court, and the court directed counsel for Deamon to prepare a judgment

and forward it to George for approval before submitting it to the court. The family court

stated that the settlement was enforceable by a motion to enter judgment pursuant to

Code of Civil Procedure section 664.6, if necessary.2 On June 1, 2017, the family court

also entered a judgment of dissolution.

Counsel for Deamon prepared a judgment and forwarded it to George for her

approval, but she raised several issues and demands, based on which she stated that she

was not prepared to approve the judgment. As a result, on July 31, 2017, Deamon filed a

request for entry of judgment according to the terms of the parties' settlement pursuant to

2 Code of Civil Procedure section 664.6 states, in relevant part, "If parties to pending litigation stipulate . . . orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement." (Code Civ. Proc., § 664.6.) 2 Code of Civil Procedure section 664.6. Deamon also included a request that the court

impose sanctions of "at least $10,000" pursuant to section 271 based on George's refusal

to approve the proposed judgment (the sanctions motion). Deamon submitted a

declaration in support of the sanctions motion, which referenced several documents that

were attached to a notice of lodgment concerning the attempt by Deamon's counsel to

obtain George's approval of the proposed judgment.3 Deamon also filed two additional

declarations prior to the hearing on the sanctions motion containing updated information

pertaining to the motion and referencing recent documents that were also attached to the

notice of lodgment. It is unclear whether George filed a written opposition to the

sanctions motion. No such opposition appears in the appellate record, but a reference

was made in one of Deamon's declarations to a responsive declaration filed by George.4

On September 7, 2017, the family court held a hearing on Deamon's request to

enter judgment pursuant to the terms of the parties' settlement. The hearing on the

sanctions motion was continued to a later date. At the September 7 hearing, George

stated that she approved the form of the judgment currently proposed by Deamon's

counsel, and the family court entered judgment.

3 The notice of lodgment is not in the appellate record, but Deamon's declarations describe the documents in the notice of lodgment. It is unclear whether the notice of lodgment was also accompanied by a declaration from counsel for Deamon authenticating the attached documents.

4 At the hearing on the sanctions motion the family court allowed George to submit certain documents that she believed were relevant, although she had not submitted them prior to the hearing. The family court's eventual order stated that the court had considered those documents in reaching its ruling. 3 On October 23, 2017, the family court held a hearing on the sanctions motion.

George appeared, representing herself in pro. per., and Deamon appeared through his

counsel. Deamon resided in Japan and did not appear in person or telephonically for the

hearing on the sanctions motion. At the hearing, George reiterated her objection to

Deamon's lack of physical presence, which she stated was an objection she had made

consistently throughout the dissolution proceedings. George stated, "I do want the Court

to know, and because I am making a record of this, that I have had an ongoing—I have

made an ongoing objection, and I have objected every time. I objected last time, the time

before that, the time before that, under 217 of the Family Code and . . . In re the

Marriage of Shimkus [(2016) 244 Cal.App.4th 1262] as to the respondent's literally . . .

never being here, not one time." In response, the family court judge, who was newly

assigned to the matter, stated, "While you are making the record, I have, because I am

new to the case, I took the opportunity to review the entire file, and I noted your

objection, so we will note a continual objection." At another point, George stated, "I

have always objected to not having [Deamon] here and objected to hearsay. I am not

stipulating on the declarations. . . . I have objected to hearsay."

After hearing extensive comments from George and counsel for Deamon on the

sanctions motion, the family court took the matter under submission. On November 28,

2017, the family court issued an order requiring that George pay $10,000 in sanctions to

Deamon. The court found that "[Deamon] has met his burden of proof in showing that

[George's] conduct as to the execution of the various proposed judgments caused him

unnecessary attorney fees and costs including those incurred as a result of having to file

4 [a request for order] to enter judgment" and that George's "conduct warrants the

imposition of attorney fees and costs as sanctions." The order set forth a list of all of the

documents that the court considered in reaching its ruling, which included (1) the

documents submitted by Deamon in a notice of lodgment and referenced in his

declarations; and (2) the package of documents submitted by George at the hearing on the

sanctions motion.

George timely filed a notice of appeal from the order imposing sanctions.

II.

DISCUSSION

George's appeal relies on a procedural challenge to the family court's order

awarding sanctions. Citing the provisions concerning live witness testimony in

section 217, George contends that the family court improperly based its ruling on the

declarations and documents submitted by Deamon rather than requiring that Deamon

provide live testimony to support his sanctions motion. George argues that under

section 217, she had the right to present live testimony, including the right to cross-

examine Deamon about the matters set forth in his declaration. According to George,

because no live testimony was presented, the court's sanctions order was not proper.5

Section 217 provides as follows:

5 "A trial court's decision about the admissibility of evidence is ordinarily reviewed under the abuse of discretion standard. However, when the issue is one of law, a de novo standard applies. . . . Here, the interpretation of section 217 is an issue of law, and we therefore apply the de novo standard of review." (In re Marriage of Swain (2018) 21 Cal.App.5th 830, 837, citation omitted (Swain).) 5 "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

"(b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

"(c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony. If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing." (§ 217.)

As the legislative history to section 217 provides, the statute "require[s] the court

in a family law action to receive all live, competent, and relevant testimony at a hearing

of an order to show cause or notice of motion, unless the parties stipulate otherwise or the

court makes a finding of good cause to refuse to hear the testimony." (Legis. Counsel's

Dig., Assem. Bill No. 939 (2009-2010 Reg. Sess.).)

As George interprets section 217, she had a right to present live testimony at the

sanctions hearing unless the family court found good cause to exclude the testimony. We

agree to a point. As the plain language of section 217 makes clear, if George had

followed the proper procedures to present live competent testimony within the scope of

the hearing, she would have had a right to do so at the sanctions hearing unless the family

court found good cause to exclude it. However, as we will explain, George did not

follow the proper procedures here to ensure that Deamon's live testimony was available

6 for the family court to receive at the sanctions hearing, and accordingly, the family court

was not required to receive any such testimony.

Initially, we note that George has identified no rule that would require Deamon's

presence—either in person or telephonically—at the sanctions hearing. Instead, as is

proper, Deamon was represented at the hearing by counsel. (In re Dolly D. (1995) 41

Cal.App.4th 440, 445 ["The general rule is that personal appearance by a party at a civil

proceeding is not essential; appearance by an attorney is sufficient and equally

effective."].) Accordingly, to ensure Deamon's presence at the hearing so that she could

cross-examine him about his declaration, George was required to serve Deamon with a

notice to appear pursuant to Code of Civil Procedure section 1987, subdivision (b).6

That provision sets forth a mechanism by which a party may compel the attendance of

another party by serving that party with a notice to appear. (Code Civ. Proc., § 1987,

subd. (b) ["In the case of the production of a party to the record of any civil action or

proceeding . . . , the service of a subpoena upon any such witness is not required if

written notice requesting the witness to attend before a court, or at a trial of an issue

therein, with the time and place thereof, is served upon the attorney of that party or

6 Unless otherwise provided by statute or rule, "rules of practice and procedure applicable to civil actions generally . . . apply to, and constitute the rules of practice and procedure in, proceedings under [the Family Code]." (§ 210.) 7 person.].)"7 Thus, although George contends that the family court should have based its

ruling on the live testimony of Deamon, including her cross-examination of him, rather

than solely on Deamon's declaration, George did not fulfill the procedural requirements

to allow that to occur because she did not bring Deamon before the court to testify. In the

context of section 217, "the right to live testimony may be forfeited." (In re Marriage of

Binette (2018) 24 Cal.App.5th 1119, 1127 (Binette).) Here, George effectively forfeited

her right to present live testimony by not providing any live witnesses whose testimony

the family court could "receive" pursuant to requirements of section 217, subdivision (a).

George also argues that Deamon's declarations were not properly before the family

court because she "did not agree to stipulate to the admission of the declarations" and

counsel for Deamon never affirmatively offered the declarations and documents into

7 Further, although George does not, in her appeal, specifically identify any witness other than Deamon whose live testimony she believes should have been presented at the sanctions hearing, had she desired to present any live witnesses other than a party to the action, she would have been required to comply with subdivision (c) of section 217, which she failed to do. That subdivision provides: "A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony. If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing." (§ 217, subd. (c), italics added.) George did not submit any witness list prior to the hearing, and at the hearing she did not request any continuance to permit her to do so. Thus, George did not meet the procedural requirements to present any non-party testimony. (See Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 313 [family court properly refused to hold an evidentiary hearing to require a stepchild to testify in a visitation dispute when the party seeking the testimony had "not demonstrated that she complied with any of the requirements of section 217"].) 8 evidence.8 However, this argument fails because nothing in section 217 requires a party

to offer evidence at a motion hearing when the motion is being decided solely based on

the party's written submissions, because no party has taken proper steps to present live

testimony. When the parties fail to present any live testimony in support or opposition to

a motion in family court, Code of Civil Procedure section 2009 controls, which—despite

the hearsay rule—allows a motion hearing to be decided based on declarations. (Code

Civ. Proc., § 2009 ["An affidavit may be used . . . upon a motion, and in any other case

expressly permitted by statute"].) "While section 217 requires the court to receive

'relevant' testimony that is 'within the scope of the hearing' when offered by the parties

(§ 217, subd. (a)), it does not foreclose the parties from submitting evidence through

other means, such as declarations, pleadings, etc." (Binette, supra, 24 Cal.App.5th at

p. 1129, italics added, citing Code Civ. Proc., § 2009.)

As we will explain, George also has not established that any failure by the family

court to make an express good cause finding to disallow Deamon's live testimony at the

8 George appears to rely on In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262 (Shimkus) in support of her argument that counsel for Deamon was required to affirmatively offer the declarations and documents into evidence at the sanctions hearing. However, Shimkus is inapposite here. Shimkus concerned an evidentiary hearing on a motion to terminate spousal support, at which the family court made clear that it would be " 'hearing the testimony orally.' " (Id. at p. 1270.) In such a circumstance, the party intending to rely on the declarations filed in support of its request for order was required to offer them or their substance into evidence by some means at the evidentiary hearing. (Id. at p. 1271.) The declarations were not "automatically in evidence." (Ibid.) Here, in contrast, the family court did not hold an evidentiary hearing because the parties did not take proper steps to present any live testimony. Instead the family court properly proceeded to consider the sanctions motion based on the declarations and documents submitted prior to the hearing with no additional requirement that they be offered into evidence at the hearing on the motion. 9 hearing amounted to prejudicial error that reasonably could have had any bearing on the

outcome of the sanctions motion.

As an initial matter, we acknowledge that it is not clear from George's comments

at the hearing that she was invoking her right to call Deamon as a witness and cross-

examine him pursuant to section 217. Although George referred to an ongoing

"objection" under section 217 and Shimkus, and later stated that she was "not stipulating

on the declarations," she did not expressly inform the family court that she was

requesting that she wanted to call Deamon as a witness so that she could cross-examine

him or that she was asking for a continuance to allow her to do so. Had the family court

judge understood George's comments as a request to present live testimony from

Deamon, the court would have been required to make a finding of good cause to refuse to

receive that testimony, which it did not do. (§ 217, subd. (b) ["[i]n appropriate cases, a

court may make a finding of good cause to refuse to receive live testimony and shall state

its reasons for the finding on the record or in writing"].)

We nonetheless conclude that the family court's failure to make an express finding

of good cause to refuse Deamon's live testimony could not have had a prejudicial impact

on the outcome of the sanctions motion for two reasons. First, as we have explained,

George did not take the proper steps to make Deamon available at the hearing so that she

could cross-examine him had the family court permitted it, and she made no attempt to

ask for a continuance of the hearing so that she could secure Deamon's live testimony.

Therefore, even without a finding of good cause, the family court could not, as a practical

matter, grant George's request to cross-examine Deamon. Second, even without a finding

10 of good cause, the family court is required to receive live testimony under section 217

only if that testimony is "relevant and within the scope of the hearing." (§ 217, subd.

(a).) George presented no explanation in the trial court or in her appellate briefing as to

how her cross-examination of Deamon would have related to any of the issues upon

which the family court based its sanctions order. As shown by the family court's order,

its ruling granting section 271 sanctions was based on the contents of the relevant draft

judgments that George refused to sign and the timeline connected with her negotiations

with Deamon's counsel on that issue.

George contends that Swain, supra, 21 Cal.App.5th 830 supports her position

because it held that the family court was required to exclude a declaration filed by a party

in connection with a motion in family court when the opposing party was unable to cross-

examine the declarant. However, Swain is inapposite because of the specific

circumstance there, in which the appealing party had no opportunity to take the

appropriate steps to make the declarant available for cross-examination. In Swain, a

former husband filed a motion to terminate spousal support, and the former wife did not

respond and did not appear at the hearing. (Id. at p. 833.) The family court continued the

hearing and ordered the parties to file updated income and expense declarations. (Ibid.)

Prior to the next hearing, the former wife filed an updated income and expense

declaration, but she did not serve it on the former husband. (Id. at pp. 832, 833.) He saw

the former wife's updated income and expense declaration for the first time at the hearing,

at which the former wife did not appear. (Id. at p. 834.) At the hearing, the former

husband objected that the family court should not consider the income and expense

11 declaration because he had no opportunity to cross-examine his former wife about its

contents. (Ibid.) The family court assured the former husband that it would not consider

the declaration. (Ibid.) Nevertheless, the family court did end up considering the

contents of the declaration in issuing its subsequent order ruling on the motion to

terminate spousal support. (Id. at p. 835.) Swain held that, pursuant to section 217, the

family court erred in relying on the former wife's declaration because the former husband

was not able to conduct a cross-examination. "We agree that section 217 . . . precludes

reliance on inadmissible hearsay over a party's objection (subject to the good cause

provision of section 217, subdivision (b)), at least where the party has no opportunity for

cross-examination." (Swain, at p. 837.) Swain explained that the hearsay exception

created by Code of Civil Procedure section 2009, which allows a party to proceed by

declarations in the context of a motion, "does not apply to a motion to modify a family

law judgment where, as here, the opposing party seeks to exclude the declaration on the

ground that he or she is unable to cross-examine the declarant. In that situation, the

opposing party's objection not only seeks to exclude hearsay evidence, but also amounts

to an assertion of the party's right under section 217 to 'live, competent testimony that is

relevant and within the scope of the hearing.' " (Swain, at p. 841.)

Swain does not apply here because the former husband in Swain was precluded

from taking any steps to obtain his former wife's live testimony so that he could cross-

examine her about the content of her declaration. The first time that the former husband

learned of the declaration was at the hearing, but the family court assured him that it

would not consider the contents of the declaration. Under that circumstance, the former

12 husband "ha[d] no opportunity for cross-examination" and was completely "unable" to do

so. (Swain, supra, 21 Cal.App.5th at pp. 837, 841.) Here, in contrast, George was fully

aware well before the hearing that Deamon had submitted declarations in support of his

motion for sanctions, and she therefore had the ability to take proper steps to assure that

he was available for cross-examination at the hearing. Unlike the former husband in

Swain, George was not "unable" to cross-examine Deamon. Instead, she failed to take

the proper steps to secure his live testimony.9

Based on the above, we conclude that although in certain circumstances the family

court is required by section 217 to receive live testimony when deciding a motion, the

family court in this case did not prejudicially err by deciding the sanctions motion based

on the declarations and documentary evidence alone.

DISPOSITION

The order is affirmed.

9 Swain is also different from this case because the former husband's cross- examination of the former wife about her income and expense declaration was centrally relevant to the issues presented in the motion to terminate spousal report, as shown by the family court's reliance on the declaration for its ruling. Here, in contrast, George has not explained how her ability to cross-examine Deamon would have had any bearing on the outcome of the family court's ruling on the sanctions motion. (See § 217, subd. (a) ["the court shall receive any live, competent testimony that is relevant and within the scope of the hearing"].) 13

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

GUERRERO, J.

14