Filed 11/22/13
                          CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                   DIVISION ONE

                              STATE OF CALIFORNIA



In re the Marriage of GREGORY J. and
MARCELA BIANCO.
                                             D062061
GREGORY J. BIANCO,

        Respondent,                          (Super. Ct. No. D520702)

        v.

MARCELA BIANCO,

        Respondent;

WINIFRED WHITAKER,

        Appellant.


        APPEAL from orders of the Superior Court of San Diego County, William H.

McAdam, Judge, and Edlene C. McKenzie, Commissioner. Reversed.



        Law Office of Carolyn Chapman and Carolyn Chapman for Appellant Winifred

Whitaker.

        Linda Cianciolo for Respondent Gregory Bianco.
                                     INTRODUCTION

       Attorney Winifred Whitaker appeals from February and March 2012 orders jointly

and severally sanctioning her $43,000 under rule 2.30(b) of the California Rules of Court

(rule 2.30(b)) for violating the California State Bar Rules of Professional Conduct by

negligently hiring an attorney ineligible to practice law to assist her in representing wife

in a dissolution trial.1 Whitaker contends the court abused its discretion in sanctioning

her because: (1) it is unclear from the record whether husband sought sanctions under

rule 2.30(b); (2) the court based the orders on an erroneous finding Whitaker had

committed an ethical violation; (3) Whitaker demonstrated good cause for the court not to

sanction her; (4) the court failed to consider the burden on Whitaker before imposing the

sanctions jointly and severally; and (5) the sanctions order included amounts not

authorized by rule 2.30(b).

       We requested and received supplemental briefing on the foundational issue of

whether rule 2.30(b) authorized the court to impose sanctions for a violation of the Rules

of Professional Conduct in a family law proceeding. We conclude rule 2.30(b) did not

authorize the sanctions and, consequently, we reverse the court's orders.2



1       Whitaker also appeals from an August 2011 order granting a mistrial. This order
is not appealable. (Code Civ. Proc., § 904.1; Juarez v. Superior Court (1982) 31 Cal.3d
759, 765; Heavy Duty Truck Leasing, Inc. v. Superior Court (1970) 11 Cal.App.3d 116,
119.) Even if the order were appealable, the appeal is untimely as Whitaker filed the
notice of appeal more than 180 days after the court entered the order in its minutes. (Cal.
Rules of Court, rule 8.104(a)(1)(C), (c)(2) & (e).) Consequently, we decline to address
any appellate issues related to the propriety of the mistrial order.

2      Given our disposition, we need not address Whitaker's requests for judicial notice.
                                              2
                                      BACKGROUND

         Whitaker represented wife in dissolution proceedings. Whitaker engaged attorney

Thomas W. Smith to act as her cocounsel at trial and he so acted even though he was

ineligible to practice law at the time because of failing to comply with mandatory

continuing legal education requirements. On the last day of the trial, the court learned of

Smith's ineligibility. The court declared a mistrial and invited husband to bring a

sanctions motion.

         Husband subsequently moved for sanctions under Family Code section 271

(section 271) and rule 2.30(b) for Whitaker's violation of rules 1-300 and 1-311 of the

Rules of Professional Conduct.3 The court denied the motion under section 271, but

granted it under rule 2.30(b). At a later hearing, the court determined the amount of

sanctions to be $43,000, which the court imposed jointly and severally on Whitaker and

Smith.

                                       DISCUSSION

         Rule 2.30(b) provides in part: "In addition to any other sanctions permitted by

law, the court may order a person . . . to pay reasonable monetary sanctions . . . for failure

with good cause to comply with the applicable rules. For the purposes of this rule,


3      Rules of Professional Conduct, rule 1-300(A) provides: "A member shall not aid
any person . . . in the unauthorized practice of law." Rules of Professional Conduct, rule
1-311(B)(2) provides: "A member shall not employ, associate professionally with, or aid
a person the member knows or reasonably should know is a[n] . . . involuntarily inactive
member to perform the following on behalf of the member's client: [¶] . . . [¶] Appear on
behalf of a client in any hearing or proceeding or before any judicial officer, arbitrator,
mediator, court, public agency, referee, magistrate, commissioner, or hearing officer."

                                              3
'person' means . . . a party's attorney . . . . If a failure to comply with an applicable rule is

the responsibility of counsel and not of the party, any penalty must be imposed on

counsel and must not adversely affect the party's cause of action or defense." Rule

2.30(b) applies to "the rules in the California Rules of Court relating to general civil

cases, unlawful detainer cases, probate proceedings, civil proceedings in the appellate

division of the superior court, and small claim cases." (Cal. Rules of Court, rule 2.30(a),

italics added.)

       Rule 2.30(b) does not apply in this case for two reasons. First, the Rules of

Professional Conduct are not part of the California Rules of Court. They are part of the

Rules of the State Bar of California.4 (See Cal. Rules of Court, rule 1.4; Rules of State

Bar, rule 1.5(H).) Second, this is not a general civil case. " 'General civil case' means all

civil cases except . . . family law proceedings." (Cal. Rules of Court, rule 1.6(4).)

       As rule 2.30(b) does not authorize sanctions for violations of the Rules of

Professional Conduct nor does the rule apply in family law proceedings, the rule did not

authorize the sanctions imposed in this case. We must, therefore, reverse the sanctions

order.5




4      The California Rules of Court are adopted by the Judicial Council of California
and, in some instances, the California Supreme Court. (Cal. Rules of Court, rule 1.3; Cal.
Const., art. VI, § 6, subd. (d).) The Rules of Professional Conduct are adopted by the
Board of Governors of the State Bar of California and approved by the California
Supreme Court. (Rules Prof. Conduct, rule 1-100(A); Bus. & Prof. Code, § 6076.)

5      Effective January 1, 2013, after the conduct at issue in this case occurred, the
Judicial Council of California adopted a new rule authorizing sanctions for violations of
                                                4
                                    DISPOSITION

      The court's orders jointly and severally sanctioning Winifred Whitaker and

Thomas Smith $43,000 are reversed. The parties are to bear their own appeal costs.



                                                                    MCCONNELL, P. J.

WE CONCUR:


NARES, J.


AARON, J.




court rules in actions or proceedings brought under the Family Code. (Cal. Rules of
Court, rule 5.14.)
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