Are AI Generated Briefs a Problem in California?
In the recent California appellate decision in Sheerer v. Panas, appellant Anna Sheerer appealed a trial court order modifying the child support payments owed by her ex-husband, respondent Thomas Panas.
She contended that the court failed to account for Panas’s bonus income in determining child support. Relatedly, Sheerer argued the court violated her due process rights by failing to hold an adequate hearing on her request to account for Panas’s bonus income.
In the unpublished portion of the opinion, the appellate court held the court erred on the merits and reverse the order.
It also addressed another issue in the published portion of the opinion.
As an in propria persona litigant, Panas submitted a respondent’s brief that attributed quotes to published cases in which no such quote appears and to cases that do not exist, and Panas’s nonmanufactured authorities do not discuss the topics for which they are cited.
His brief also does not conform to the California Rules of Court (hereinafter Rules) regarding its contents, formatting, and directive to provide support for factual assertions with citations to the record.
In a declaration submitted to the court, Panas explained the fabrications were due to his use of a generative artificial intelligence (AI) tool to write the brief.
Division Three of the Second District Court of Appeal recently published an opinion “warning” that “no brief, pleading, motion, or any other paper filed in any court should contain any citations—whether provided by generative AI or any other source—that the attorney responsible for submitting the pleading has not personally read and verified.” (Noland v. Land of the Free, L.P.)
The court emphasized that any attorney who fails to heed the warning faces sanctions and potential discipline.
This opinion was published to extend that warning to in propria persona litigants.
Sheerer and Panas were a married couple that began dissolution proceedings in 2019. The couple have two children from their marriage and have joint physical custody of them on a 50/50 time share.
In 2020 and 2021, the trial court issued several child support orders following hearings on the matter. Initially, in September 2020, the court ordered Panas to pay child support of varying monthly amounts, which were calculated as a function of the parties’ relative incomes each month.
In November 2020, the court entered a new order with additional findings regarding Panas’s fluctuating income, and the court included a Smith-Ostler provision, ordering “additional income received by either party in excess of the base income used in the initial support order” to be included in calculating additional child support.
In December 2021, the court entered another new order, detailing the Smith-Ostler provision’s mechanics, calculating retroactive payments, and reaffirming that the Smith-Ostler provision would be prospectively “calculated on a monthly basis.”
In June 2023, Sheerer moved to modify the existing child support order due to a change in both parties’ incomes and her employment status.
At a hearing in November 2023, the court stated that it would adopt the DCSS’s guideline calculation that Panas pay $2,388 in monthly child support to Sheerer, retroactive to July 1, 2023. Because of the retroactive nature of the order, the court found Panas in arrears and ordered him to make monthly payments until the balance was paid.
A child support order that requires a percentage of bonus income to be paid as additional child support is commonly referred to as a “Smith-Ostler provision” because it is derived from the appellate decision In re Marriage of Ostler & Smith.
The trial court held hearings in February 2024 and May 2024, each of which focused on factual disputes regarding both parties’ financial limitations and Sheerer’s difficulties in finding employment.
The February 2024 hearing resulted in a formal seek work order directed at Sheerer, and the court retained retroactive jurisdiction on child support and Panas’s payment of arrears.
At the May 2024 hearing, it was brought to the trial court’s attention that the November 2023 order “did not include a Smith Ostler provision” despite there being one “in the prior order.”
After hearing the parties’ arguments, the court found Sheerer in compliance with the seek work order, reduced Panas’s monthly payments on arrears, and otherwise left the November 2023 order in place, reserving jurisdiction with regard to the request for the Smith Ostler provision.
At the next hearing in July 2024, DCSS explained to the trial court that Sheerer was still complying with the seek work order yet she remained unemployed, preventing the recalculation of child support. Sheerer then relayed her difficulties finding employment and again requested a new calculation for child support that accounted for Panas’s bonus and RSU compensation.
In response, Panas asserted that Sheerer was not complying with the seek work order, and he sought a reduction in child support payments and clarity on a Smith-Ostler provision. The parties traded accusations that the other was harming the children’s interests until the court interjected.
The trial court stated: “[T]his is obviously a very contentious situation. What this court’s concern is . . . the support and the amount of time Ms. Sheerer has been unemployed. Certainly if the tables were turned, Ms. Sheerer, you would want Mr. Panas to be employed and contributing to the children’s lives and financially contributing. [¶] So at this time, I’m going to deny the request for a Smith-Osler. [¶] I’m going to deny the request to cut support in half.”
The court also increased Sheerer’s obligations under the seek work order. The court did not mention Panas’s total compensation in either its verbal or written order. Sheerer appealed.
California has a strong public policy that favors adequate child support.
The Legislature expressed that policy through the uniform child support guideline.
The guideline seeks to place the interests of children as the state’s top priority.
Guideline child support is calculated by applying a mathematical formula to the relative incomes of the parents, and it is presumed to be the correct amount of child support to be ordered.
The guideline takes into account each parent’s actual income and level of responsibility for the children.
Family Code, section 4053 further lays out principles the trial court must adhere to, principles which emphasize that each parent must prioritize and provide support commensurate with their individual ability so that his or her children share in the standard of living of both parents across two homes with relative parity.
Family Code section 4058 broadly defines a parent’s “annual gross income” to mean “income from whatever source derived” (other than child support payments and income from public assistance programs based on need).
The statute includes “bonuses” as income in a non-exhaustive list of examples. and compensation in the form of stock options is also treated as income for purposes of calculating child support once there are no legal restrictions on the parent’s ability to exercise the option and sell the shares.
Each parent’s annual gross income is used to compute their annual net disposable income (§ 4059), which in turn is used to calculate each parent’s monthly net disposable income (§ 4060), which is the key input to the guideline’s formula for determining the amount of child support (§ 4055).
However, if a parent’s monthly income fluctuates—such as from discretionary bonuses—the court may adjust the child support order as appropriate.
A court may accommodate unpredictable income through a Smith-Ostler provision, but the method a court fashions to account for such income is left to the court’s discretion so long as a parent’ support obligations include all income that the parent actually receives.
Here, the trial court erred because it failed to account for Panas’s bonus income and RSUs in calculating child support.
The November 2023 order ended the Smith-Ostler provision that had been in place, and the court did not implement another method for requiring Panas to pay support obligations based on income that included any bonuses or RSUs that he received.
The court did not make any findings under subdivision (b) of section 4057 that would permit the court to deviate from the presumptively correct statewide uniform guideline formula amount, which must include all income.
Nor did the court state in writing or on the record the information required in subdivision (a) of section 4056 to do so. The court’s stated concern regarding the amount of time that Sheerer has been unemployed does not allow it to exclude Panas’s bonus or RSU income from his annual gross income for the purposes of child support obligations.
Despite his self-representation, the appellate court held Panas to the same standard as an attorney.
A party, no less than his attorney, should not be permitted to escape the consequences of his or her abusive litigation tactics.
Over three decades ago, the California Supreme Court explained that a doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.
The court allowed Panas and Sheerer to respond to each other’s arguments before it addressed the seek work order and Panas’s payment on arrears, and the court reserved retroactive jurisdiction on a Smith-Ostler provision, which it ruled on at the next hearing.
In the last two and a half years, many courts have confronted briefs populated with fraudulent legal citations resulting from parties’ reliance on generative AI.
In his respondent’s brief, Panas cited at least two cases that do not exist.
He further fabricated quotes that appear nowhere in the (real) cases cited.
In his declaration clarifying facts filed in this Court after Sheerer filed a motion to strike respondent’s brief, Panas explained that his “error” in providing fake quotations and citing nonexistent case law was caused by his use of an AI tool and his failure to verify his citations.
He averred that he did not knowingly submit false information to the Court. His lack of knowledge, of course, is a direct result of his failure to verify citations, a requirement of all attorneys and self-represented litigants responsible for briefs filed in this Court.
Respondent’s conduct in this regard is a patent violation of the Rules of Court and alone, merits striking his brief.
But aside from Panas’s purported obliviousness to the falsity of his legal citations and quotes, he also referenced hearings in the present case that appear nowhere in the record but we will not expend judicial resources verifying whether the hearings or their purported contents are AI hallucinations too.
Further, Panas failed to format the brief in accordance with Rule 8.204 by omitting a table of authorities, page numbers, and citations to the record for each reference to the proceedings below.
Many of Panas’s (unsupported) factual assertions are irrelevant, not least his allegations that the court sanctioned Sheerer and that Sheerer failed to comply with court orders. He then had the temerity to request this court to refer this matter to the trial court for consideration of sanctions against Sheerer.
Our legal system, indeed the social compact of a civilized society, is predicated upon respect for, and adherence to, the rule of law.
The rule of law is founded upon the principle that courts must impartially apply the law to facts.
That foundation is threatened when litigants falsify the truth, especially when done by using technological innovations that can spin persuasive webs of untruths and invent legal principles or authorities.
Thus, the warning to litigants is not merely an admonition to double- check citations and otherwise fastidiously comply with the Rules of Court; it is to be at all times truthful and to be responsible in crafting any written arguments presented in this Court.
Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense.
It further cautioned that the redress for false and missing citations is not limited to disregarding a brief. The appellate court may impose monetary sanctions pursuant to its own motion for unreasonable violations of the rules governing appeals.
However, given Panas’s admission of his error and considering that it would not be in the best interest of the children at the heart of the underlying proceedings, the appellate court decided not to do so here.
The child support order of September 9, 2024 was reversed and remanded with instructions to the trial court to reassess Panas’s child support obligation based on a consideration of his full income, including bonuses and RSU compensation.
LESSONS:
1. California has a strong public policy that favors adequate child support.
2. Guideline child support is calculated by applying a mathematical formula to the relative incomes of the parents, and it is presumed to be the correct amount of child support to be ordered. The guideline takes into account each parent’s actual income and level of responsibility for the children.
3. Our legal system, indeed the social compact of a civilized society, is predicated upon respect for, and adherence to, the rule of law. The rule of law is founded upon the principle that courts must impartially apply the law to facts.
4. Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense.r.