Filed 2/4/19
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                  SECOND APPELLATE DISTRICT

                           DIVISION SIX


In re the Marriage of ANNA
ANKA and LOUIS YEAGER.

ANNA ANKA,                             2d Civil No. B281760
                                     (Super. Ct. No. SD032322)
     Appellant,                          (Ventura County)

v.

LOUIS YEAGER et al.,

     Respondents;

LISA HELFEND MEYER,

     Objector and Appellant.


       It is axiomatic that an attorney must represent a client to
the best of his or her ability. The attorney owes a duty to that
client to present the case with vigor in a manner as favorable to
the client as the rules of law and professional ethics permit. But
besides being an advocate to advance the interest of the client,
the attorney is also an officer of the court. (See Bus. & Prof.
Code, § 6067; Norton v. Hines (1975) 49 Cal.App.3d 917, 922.)
       California Rules of Court, rule 9.7, pertaining to the oath
required when an attorney is admitted to practice law, concludes
with, “ ‘As an officer of the court, I will strive to conduct myself at
all times with dignity, courtesy, and integrity.’ ”1 These cautions
are designed to remind counsel that when in the heat of a
contentious trial, counsel’s zeal to protect and advance the
interest of the client must be tempered by the professional and
ethical constraints the legal profession demands. Unfortunately,
that did not happen here.
       In a child custody dispute, the trial court imposed $50,000
in sanctions jointly and severally against an attorney and her
client for disclosing information contained in a confidential child
custody evaluation report. (Fam. Code, §§ 3025.5, 3111.)2
       We affirm the order for sanctions against the attorney but
reverse the order for sanctions against the client.
                                FACTS
       Anna Anka (Anna) was married to Louis Yeager.3 A child
was born of the marriage. The parties dissolved their marriage,
but child custody issues remained (Yeager action). The trial
court ordered that a child custody evaluation be performed by Dr.
Ian Russ, and that the parties undergo a psychological evaluation
if Russ recommended it. Russ filed a custody evaluation report
that included a psychological evaluation by Dr. Carl Hoppe.
       After the Yeager marriage dissolved, Anna married Paul
Anka (Paul). A child was born of that marriage also. The Ankas

      1  Deletion of the words “strive to” from the oath gives it the
potency it deserves. Attorneys are up to the task.
       2 All further statutory references are to the Family Code

unless stated otherwise.
       3 No disrespect intended; we refer to some parties by their

first names for clarity.


                                  2
dissolved their marriage, but child custody issues remained
(Anka action). Thus, Anna was a party to custody disputes in
both the Yeager and Anka actions. Attorney Lisa Helfend Meyer
represented Anna in both actions.
       Yeager filed an affidavit in support of Paul in the Anka
action. The affidavit accused Anna of substantial misconduct
involving the children from both marriages.
       Meyer took Yeager’s deposition in the Anka action. She
asked Yeager numerous questions without objection about what
he told Dr. Russ during the custody evaluation; what his child
told Russ during the custody evaluation; and what Russ found
and concluded.4 Yeager answered that he did not remember to
most of the questions. After a lunch break, Yeager did not return
to continue the deposition.
       Yeager moved for sanctions in the Yeager action under
sections 3025.5 and 3111, subdivision (d) for disclosing
information contained in a confidential custody evaluation. The
trial court granted the motion.
       The trial court found the disclosures were made
maliciously, recklessly, without substantial justification, and
were not in the best interest of the child. The court ordered Anna
and Meyer to pay jointly and severally a fine of $50,000. The
court found that the fine was large enough to deter repetition of
the conduct; and that in absence of evidence to the contrary, the
fine would not impose an unreasonable financial burden on the
parties.




      4We need not add to the invasion of privacy by repeating
the questions verbatim.


                                3
                            DISCUSSION
                                    I
       Meyer contends the information she sought is not protected
by section 3025.5.
       Section 3025.5, subdivision (a) provides:
       “In a proceeding involving child custody or visitation rights,
if a report containing psychological evaluations of a child or
recommendations regarding custody of, or visitation with, a child
is submitted to the court, . . . that information shall be contained
in a document that shall be placed in the confidential portion of
the court file of the proceeding, and may not be disclosed, except
to the following persons:
       “(1) A party to the proceeding and his or her attorney.
       “(2) A federal or state law enforcement officer, the licensing
entity of a child custody evaluator, a judicial officer, court
employee, or family court facilitator of the superior court of the
county in which the action was filed, or an employee or agent of
that facilitator, acting within the scope of his or her duties.
       “(3) Counsel appointed for the child pursuant to Section
3150.
       “(4) Any other person upon order of the court for good
cause.” (Italics added.)
       Meyer argues the term “that information” as used in
section 3025.5, subdivision (a) refers only to “psychological
evaluations of a child or recommendations regarding custody of,
or visitation with, a child.” She claims nothing else contained in
the report is protected.
       Meyer acknowledges that she asked about Yeager’s
statements to Dr. Russ. She also acknowledges she asked about
Russ’s findings whether Anna abused her children and the




                                 4
children’s attachment to Anna. But Meyer asserts none of these
areas are protected by the statute.
        Meyer attempts to parse the statute into meaninglessness.
The purpose of section 3025.5, subdivision (a) is to protect the
privacy of the child and to encourage candor on the part of those
participating in the evaluation. Statements made to the
evaluator and the evaluator’s conclusions about parental abuse
and the nature of the relationship between parent and child are
well within the protection of the statute. The evaluator’s
conclusions about parental abuse and the relationship between
parent and child are at the very heart of every child custody
evaluation.
        Meyer argues section 3025.5 carries no penalty for its
violation. But section 3111, subdivision (d) provides:
        ”If the court determines that an unwarranted disclosure of
a written [child custody evaluation] confidential report has been
made, the court may impose a monetary sanction against the
disclosing party. The sanction shall be in an amount sufficient to
deter repetition of the conduct, and may include reasonable
attorney’s fees, costs incurred, or both, unless the court finds that
the disclosing party acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
The court shall not impose a sanction pursuant to this
subdivision that imposes an unreasonable financial burden on
the party against whom the sanction is imposed.”
        Meyer claims section 3111 protects only the written report
itself, not the confidential information contained in the report.
Suffice it to say, the argument is absurd.
        Meyer argues that her questions disclosed no confidential
information. It is true that Yeager evaded answering the




                                  5
questions by stating he did not remember. But the nature of
Meyer’s questions implicitly disclosed confidential information.
One would have to be unduly naïve not to know the information
contained in the report.
       Meyer argues there were no disclosures to unauthorized
persons. She points out the only persons present at Yeager’s
deposition were the parties, their attorneys, a court reporter, a
videographer, and Paul’s attorney.
       Meyer claims the court reporter and videographer are
exempt under section 3035.5, subdivision (a)(2) as officers of the
court. But the subdivision does not exempt officers of the court; it
exempts a “court employee.” (Ibid.) Meyer points to no evidence
that the court reporter and videographer are court employees.
Nor is Paul’s attorney exempt under section 3035.5, subdivision
(a)(1) as an attorney for a party to the proceeding. The
confidential custody report was prepared for the Yeager action.
Paul is not a party to that action. Finally, Meyer points to no
evidence that the deposition itself was taken under seal.
       Section 3111, subdivision (f) defines an “unwarranted”
disclosure as one that is “done either recklessly or maliciously,
and is not in the best interests of the child.”
       Meyer argues the evidence does not support a finding of
malice or recklessness. But Meyer did not inadvertently disclose
information in the report. She intentionally asked numerous
questions that disclosed the information. Her actions went
beyond reckless; they were intentional.
       Meyer argues her conduct did not negatively impact the
child’s best interest. But Meyer’s questions disclosed highly
personal information about the child and her family. That
supports the trial court’s finding that the disclosure was not in




                                 6
the best interest of the child. Moreover, Meyer fails to explain
how disclosing the information in the Anka action is in the best
interest of Yeager’s child.
       Meyer argues she is protected by the litigation privilege.
(Civ. Code, § 47, subd. (b).) But the litigation privilege does not
apply to sanctions imposed by the trial court. (See In re Marriage
of Davenport (2011) 194 Cal.App.4th 1507, 1527.)
       Meyer’s reliance on Bernstein v. Alameda-Contra Costa
Medical Assn. (1956) 139 Cal.App.2d 241 and Action Apartment
Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232 is
misplaced.
       In Bernstein, a physician prepared a report that criticized
another physician. The report was prepared for use in litigation.
The physician who prepared the report was disciplined by a local
medical association under a bylaw prohibiting the criticism of
another physician. The court held that the litigation privilege
bars the enforcement of such a bylaw. (Bernstein v. Alameda-
Contra Costa Medical Assn., supra, 139 Cal.App.2d at p. 246.)
       In Action Apartment Assn., the court held that the
litigation privilege preempts a local ordinance imposing civil and
criminal penalties on any landlord who maliciously takes action
to terminate a tenancy. (Action Apartment Assn., Inc. v. City of
Santa Monica, supra, 41 Cal.4th at p. 1252.)
       Bernstein and Action Apartment Assn. concern the
preemption of an association bylaw and a local ordinance by Civil
Code section 47, subdivision (b). They do not concern the
imposition of sanctions by the trial court, an act expressly
authorized by section 3111, subdivision (d). If the imposition of
sanctions by the trial court were covered by the litigation
privilege, the trial courts would have no control over litigation.




                                7
                                   II
       Meyer contends the sanction order without findings
supporting the imposition of sanctions violates due process.
       Here the trial court expressly made all the necessary
findings for the imposition of sanctions pursuant to sections
3025.5 and 3111. Meyer’s actual complaint is that the trial court
did not identify the factual basis for those findings. She relies on
Caldwell v. Samuels Jewelers (1990) 222 Cal.App.3d 970.
       In Caldwell, the trial court imposed sanctions pursuant to
Code of Civil Procedure 177.5 for failure to comply with a court
order. That section requires that the order imposing sanctions
“recite in detail the conduct or circumstances justifying the
order.” The trial court’s order simply stated there was “good
cause appearing” to justify the sanctions. Caldwell held that the
trial court stated an inadequate justification for the sanctions.
(Caldwell v. Samuels Jewelers, supra, 222 Cal.App.3d at p. 977.)
Caldwell also held “due process requires that any order giving
rise to the imposition of sanctions state with particularity the
basis for finding a violation of the rule.” (Id. at p. 978.)
       Here, unlike Caldwell, the trial court’s order did not simply
say “good cause appearing.” Instead, the order made the factual
basis for finding a violation abundantly clear. The order stated:
“The court finds that portions of the Confidential Child Custody
Evaluation of Dr. Russ and the Psychological Evaluation of Dr.
Hoppe conducted in this case [Marriage of Yeager] were disclosed
by the questions of Petitioner’s counsel in a deposition in the
[Marriage of Anka] case . . . . This constituted dissemination of
information contained in a confidential custody evaluation in an
unrelated case in violation of the prohibitions contained in
Family Code sections 3025.5 and 3111(d) and Judicial Council




                                 8
forms 328 and 329. The court finds that these disclosures were
done maliciously, recklessly, and without substantial
justification. The court further finds that these disclosures were
not in [the child’s] best interests. These acts are sanctionable by
way of a fine.”
       That is sufficient to satisfy due process.
       Meyer argues the fine violates the ban on excessive fines in
the federal and California Constitutions. (U.S. Const., 8th
Amend.; Cal. Const., art. I, § 17.)
       Our Supreme Court in People ex rel. Lockyer v. R.J.
Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 729, articulated the
test for determining whether a fine is unconstitutionally
excessive. The court should consider: (1) the defendant’s
culpability, (2) the relationship between the harm and the
penalty, (3) the penalties imposed in similar statutes, and (4) the
defendant’s ability to pay. (Id. at p. 728.)
       As to culpability, Meyer willfully disclosed information that
she knew was confidential and protected by statute. The harm is
not only to Yeager and his child, it is also to the entire process of
child custody evaluation. Meyer points to no similar statutes
with which we can compare. Finally, Meyer had notice that
Yeager was seeking $50,000 in sanctions. Evidence of her ability
to pay is entirely within her control. But she made no effort to
introduce such evidence.
       The trial court did not abuse its discretion in imposing
sanctions on Meyer.
                                   III
       Although the trial court did not abuse its discretion in
sanctioning Meyer, the sanctions against Meyer’s client Anna are
another matter.




                                  9
      There is nothing in the record to suggest Anna directed or
even encouraged Meyer to disclose privileged information.
Presumably Meyer, a seasoned trial attorney, was in charge of
the proceedings. Most clients assume their attorney’s questions
are proper and will not expose them to sanctions. There is no
suggestion that Anna thought otherwise.
      The judgment (order for sanctions) against Meyer is
affirmed. The judgment (order for sanctions) against Anna is
reversed. Costs are awarded to respondents.
      CERTIFIED FOR PUBLICATION.




                                    GILBERT, P. J.
We concur:




             PERREN, J.




             TANGEMAN, J.




                               10
                     John R. Smiley, Judge

               Superior Court County of Ventura

                ______________________________



      Honey Kessler Amado, James A. Karagianides for
Appellants.
      Goldenring & Prosser, Peter A. Goldenring and Edwin S.
Clark for Respondent Louis Yeager.
      Degani Law Offices, Orly Degani; Law Offices of Salley E.
Dichter, Salley E. Dichter for Minor and Respondent E.Y.




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