Alleged Preparation of False Instruments for Use in Court Proceedings

A California doctrinal frame on Penal Code section 134, the attorney’s duty of candor, and the case law that governs the preparation of instruments intended for use in court proceedings.Doctrinal restatement · Allegation framing throughout · No finding has been made

When a person prepares an instrument bearing the form and indicia of a legal document, intends to use that instrument in a proceeding authorized by law, and embeds within it content that the law forbids — what is that conduct, and how does California treat it?

This page restates the doctrinal frame without reference to any individual, firm, or pending matter. It speaks in third-person abstract throughout. It is intended as a reference for tenants, attorneys, agencies, and courts encountering this fact pattern, and as a citation source for those analyzing it.

A. Penal Code section 134 — Preparing False Instruments for Use in Proceedings

The principal anchor is Pen. Code, § 134:

“Every person guilty of preparing any false or ante-dated book, paper, record, instrument in writing, or other matter or thing, with intent to produce it, or allow it to be produced for any fraudulent or deceitful purpose, as genuine or true, upon any trial, proceeding, or inquiry whatever, authorized by law, is guilty of felony.”

The elements are: (1) preparation of a false matter or thing; (2) intent to produce it, or allow it to be produced, in a proceeding authorized by law; (3) presented as genuine or true; (4) for a fraudulent or deceitful purpose. The offense is a felony, carrying up to three years in state prison.

Three features distinguish section 134 from related statutes.

First, section 134 does not require forgery. The instrument may be one the preparer authored and acknowledges authoring. It is the content, not the authorship, that satisfies the falsity element. Forgery, by contrast, requires falsification of a signature or false attribution of authorship. (Pen. Code, § 470.)

Second, section 134 does not require that the instrument actually be produced. Preparation with the requisite intent completes the offense. California’s foundational construction of the statute in People v. Horowitz (1945) 70 Cal.App.2d 675 establishes that specific intent to produce false documents in legal proceedings is the necessary mental element. The act of preparation, accompanied by that intent, is the gravamen.

Third, section 134 reaches “any trial, proceeding, or inquiry whatever, authorized by law.” The reach is comprehensive: civil and criminal, judicial and administrative, evidentiary and pre-trial. Unlawful detainer proceedings, eviction hearings, probate proceedings, small claims trials, and adjudicative administrative hearings all fall within the statute’s scope.

The “false” element is calibrated by knowledge. An instrument is false within section 134’s meaning when it is, with knowledge that it is not true, represented as a genuine or true fact. Falsity by error or mistake does not satisfy the element. Falsity by knowing inclusion of content that misrepresents a legal or factual proposition does.

B. Business and Professions Code section 6068, subdivision (d) — Duty Not to Mislead by Artifice

Where the preparer is a licensed attorney, an additional statutory anchor applies. Bus. & Prof. Code, § 6068, subd. (d) declares it the duty of every California attorney:

“To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”

The operative concept is artifice. An artifice, in this statute’s sense, is a contrivance — a constructed mechanism by which a misleading representation is conveyed. A pre-printed form designed for use in proceedings, containing content the law forbids, is an artifice of the kind the statute reaches. The element of design — the deliberate construction of a mechanism that produces a misleading result on use — is what distinguishes artifice from inadvertent misstatement.

A violation of section 6068, subdivision (d) is a basis for State Bar discipline. (Bus. & Prof. Code, § 6103.) Where the artifice forms part of a pattern, the conduct may also implicate the moral turpitude provision of Bus. & Prof. Code, § 6106.

C. Rule of Professional Conduct 3.3 — Candor Toward the Tribunal

Effective November 1, 2018, California adopted Cal. Rules Prof. Conduct, rule 3.3, which provides in pertinent part:

“(a) A lawyer shall not: (1) 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; … (3) offer evidence that the lawyer knows to be false.”

Rule 3.3 operates in parallel with section 6068, subdivision (d). The rule defines “tribunal” broadly (rule 1.0.1(m)) — courts, arbitrators, administrative bodies acting in adjudicative capacity, and special masters. The duty extends through the conclusion of the proceeding. The knowledge standard is the same as section 134’s: rule 3.3 reaches what the lawyer knows, not what a careful lawyer would have known.

A. California Supreme Court

Paine v. State Bar (1939) 14 Cal.2d 150, 154, states the principle that anchors this entire doctrinal area:

“Honesty in dealing with the courts is of paramount importance, and misleading a judge is, regardless of motives, a serious offense.”

The “regardless of motives” formulation is significant. It forecloses a defense premised on the preparer’s good intentions, business pressure, or claim of innocent error. The standard is objective and conduct-based. Whether the preparer believed the conduct was permissible, expedient, customary in his trade, or beneficial to a client is not relevant to the question whether the conduct misled the judge. The same standard governs the attorney’s duty of candor under section 6068, subdivision (d) and rule 3.3.

Giovanazzi v. State Bar (1980) 28 Cal.3d 465. The California Supreme Court reviewed State Bar discipline charged under former rule 7-105 (predecessor to current rule 3.3) for “misleading the court by false pleading,” together with violations of Bus. & Prof. Code sections 6103, 6067, and 6068, and acts involving moral turpitude under section 6106. The Court adopted the State Bar’s discipline recommendation. The case stands for the proposition, in the highest California authority, that misleading the court through prepared pleadings is sanctionable conduct under the same statutory framework that governs all attorney duties.

B. California Court of Appeal

People v. Horowitz (1945) 70 Cal.App.2d 675 is the foundational California construction of section 134 itself. The defendant there had prepared an antedated will with the intent to allow it to be produced for a fraudulent purpose in a probate proceeding. The court affirmed convictions on separately charged counts of forgery (§ 470), filing a false instrument (§ 115), offering false evidence (§ 132), and preparing a false instrument (§ 134) — confirming that section 134 reaches preparation as an offense distinct from each of the others. Each section addresses a distinct stage of the same conduct architecture.

C. Federal Persuasive Authority

The federal common-law doctrine of fraud upon the court reaches conduct of similar character. Hazel-Atlas Glass Co. v. Hartford-Empire Co. (1944) 322 U.S. 238 establishes that fraud upon the court permits vacatur of judgments at any time, without regard to the ordinary finality doctrines. Aoude v. Mobil Oil Corp. (1st Cir. 1989) 892 F.2d 1115 articulates the operative standard:

“Fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate.”

The “sentiently set in motion” language is descriptive of the form-design architecture: the preparer designs the instrument with knowledge of its intended use; the use unfolds across cases through the operation of the form itself; the architecture, not any single transaction, is what is “set in motion.” Federal authority is persuasive, not controlling, in California state proceedings — but the doctrinal alignment between fraud-upon-the-court and section 134 is exact.

Section 134’s “false” element requires content that is, with knowledge, represented as genuine or true. To establish that a particular line, demand, or representation embedded in a prepared instrument is “false” within the statute’s meaning, the underlying legal restriction governing the document type must be identified. The instrument is false when it includes content the law forbids that document to contain.

In the context of California unlawful detainer practice, the relevant restriction is the strict-compliance rule for three-day notices under Code Civ. Proc., § 1161, subd. (2). The Court of Appeal has repeatedly held:

1. A three-day notice to pay rent or quit must accurately state the amount due, and over-demand renders the notice ineffective. (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697.)
2. Strict compliance — not substantial compliance — is required. (WDT-Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.)
3. Even minor over-demand voids the notice. An overstatement of $5.96 on rent of $1,078 has been held sufficient to render the notice defective. (Nourafchan v. Miner (1985) 169 Cal.App.3d 746, 753, disapproved on other grounds in Minelian v. Manzella (1989) 215 Cal.App.3d 457.)
4. Late fees and similar non-rent charges cannot be included in a three-day notice. (Liebovich v. Shahrokhkhany (1997) 56 Cal.App.4th 511.)
5. The strict-compliance rule applies notwithstanding any contractual or business preference of the landlord. (Levitz Furniture Co. v. Wingtip Communications, Inc. (2001) 86 Cal.App.4th 1035.)

A line on a three-day notice demanding any category of payment that the controlling statute forbids — attorney fees, late fees, NSF fees, repair charges, or any other non-rent category — is content the law forbids. A pre-printed form containing such a line is an instrument prepared for use in proceedings (UD trials are proceedings authorized by law) containing content that, when used, will be presented to the tribunal as genuine. The elements of section 134 align directly.

The same analytical structure applies wherever a document type is statutorily restricted in content: notices required to be served before forfeiture, declarations attached to motions, verifications attesting to facts not within the verifier’s knowledge, claim forms with categorical restrictions, and any other instrument the law restricts as to permissible content.

How regulators have characterized this kind of architecture when it has surfaced at scale.

The matters involving Steven J. Baum, P.C. provide the canonical comparator. Until late 2011, the firm was the largest foreclosure law firm in New York State, having filed in excess of 100,000 foreclosure proceedings between 2007 and 2010 representing major mortgage servicers including Wells Fargo, JPMorgan Chase, Bank of America, and HSBC. Two distinct enforcement actions resolved the matter.

In October 2011, the United States Attorney for the Southern District of New York announced a $2 million settlement with Steven J. Baum, P.C., resolving an investigation into the firm’s “filing misleading pleadings, affidavits, and mortgage assignments in state and federal courts in New York.” (United States Attorney’s Office, S.D.N.Y., press release, Oct. 6, 2011.)

In March 2012, the New York Attorney General announced a $4 million settlement with the same firm and its principals, resolving claims under New York Executive Law section 63(12) and General Business Law section 349. The Attorney General characterized the conduct as “filing cases based upon inaccurate documents filed in court.” (New York Office of the Attorney General, press release, Mar. 22, 2012.) The investigation found that the firm prepared documents “in an assembly-line fashion by non-attorney employees with inadequate attorney supervision” and that attorneys “routinely signed complaint verifications … without reviewing the contents of the complaints or the underlying documents.” A New York Supreme Court judge characterized the firm’s operation as functioning “in a parallel mortgage universe, unrelated to the real universe.”

The architectural pattern that the Baum matters represent — a single law firm preparing volume documents for filing in court, where the documents contain content the firm knew or should have known was inaccurate — is the regulatory analog to the doctrine articulated on this page. The doctrinal differences are illustrative: in Baum the documents misled because they asserted unverified facts; an instrument with statutorily prohibited content misleads because it includes what the law forbids. Both fall within the same critique. The form is the instrumentality; the use is the deception; the originator is the law firm that designed the form.

The doctrine articulated by the convergence of Penal Code section 134, Business and Professions Code section 6068, subdivision (d), Rule of Professional Conduct 3.3, and the case law of Paine, Giovanazzi, and People v. Horowitz may be stated as follows:

Where a person prepares an instrument bearing the form and indicia of a legal document, intends that the instrument be used in a proceeding authorized by law, and embeds within it content that the controlling law forbids, the preparer’s conduct is sanctionable. Where the preparer is an attorney, the conduct violates the attorney’s duties under section 6068, subdivision (d), rule 3.3, and the officer-of-the-court principle articulated in Paine. Where the preparer’s intent is fraudulent or deceitful, the conduct is a felony under section 134.

Elements

1. Preparation. The instrument is created or assembled by the actor.
2. False content. The instrument contains content that is, with knowledge of the actor, contrary to the controlling law or factual record. The “false” element of section 134 is satisfied by content the actor knows is not what the law permits the document to contain.
3. Intent to use in a proceeding. The instrument is prepared with intent that it be used in a trial, proceeding, or inquiry authorized by law. Unlawful detainer proceedings, eviction hearings, probate proceedings, and adjudicative hearings of all kinds qualify.
4. Fraudulent or deceitful purpose. The intent is to produce the instrument as genuine or true for a purpose the actor knows is not consistent with the law.

Burden of Proof

The burden of proof is by a preponderance in State Bar disciplinary proceedings. (Bus. & Prof. Code, § 6068; Cal. Rules of Court, rule 9.4.) The burden is beyond a reasonable doubt in criminal proceedings under section 134. The federal fraud-upon-the-court doctrine requires clear and convincing evidence. (Aoude v. Mobil Oil Corp., supra, 892 F.2d at p. 1118.)

What This Doctrine Is Not

This doctrine should not be conflated with three related but distinct concepts:

Forgery (Pen. Code, § 470) requires falsification of a signature or false attribution of authorship. Section 134 does not require forgery; the instrument may be authored by the preparer in his own name and signed by him.

Perjury (Pen. Code, § 118) requires a false statement made under oath in a proceeding. Section 134 reaches the preparation of false written matter regardless of oath, and reaches preparation alone, before any sworn statement occurs.

Offering false evidence (Pen. Code, § 132) requires the actual offer of forged or fraudulently altered evidence in a proceeding. Section 134 reaches the preparation phase, before any offer occurs, and reaches matter beyond writings.

Each of these statutes occupies a distinct doctrinal space. Section 134 is unique in that it reaches the architecture of the false instrument itself — the deliberate construction of a misleading mechanism — independent of whether the mechanism is ever used.

Limits

The doctrine articulated on this page does not reach:

• Documents lawfully prepared that are, in retrospect, mistaken. The falsity element requires knowledge.
• Documents that contain disputed legal interpretations. Section 134 distinguishes “false” from “incorrect”; advocacy of a contested legal position is not falsity.
• Documents prepared without intent to use in a proceeding. Drafts, internal memoranda, and private correspondence fall outside section 134.
• Conduct by non-attorneys, with respect to section 6068, subdivision (d) and rule 3.3 specifically. Both apply only to licensed attorneys. Section 134 itself reaches any person.