Recent Dependency Law Cases

N.M. v. W.K.
03/19/24 CA 1/3: A168081 – J. Tucher
https://www.courts.ca.gov/opinions/documents/A168081.PDF

In this partially published opinion, the Court of Appeal addressed “the following question: when a petitioner seeks a domestic violence restraining order, is a respondent who has already responded to the petition entitled to a continuance of the hearing on the request ‘as a matter of course?’” The Court of Appeal concluded that such a respondent is not entitled to a continuance under these circumstances.

Family Code section 245(a) provides that a “respondent shall be entitled, as a matter of course, to one continuance for a reasonable period, to respond to the petition.” In this case, since Husband had requested a continuance after he responded to the petition, he was not automatically entitled to a continuance.

Husband also argued that under Family Code section 243, he was entitled to at least five days’ notice before the restraining order hearing. Since the Court of Appeal concluded that Wife’s supplemental declarations did not reset the five-day notice period, Husband had in fact had more than five days’ notice.

Finally, the Court of Appeal addressed Husband’s request for a discretionary continuance under Family Code section 245(b). Since Husband “had already declared himself prepared to proceed” and since he was aware of the evidence that was going to be presented at the hearing well in advance, he could not establish an abuse of discretion.

Author’s note: This case basically says if you want a continuance as a respondent in a DVRO request, it’s probably prudent to not respond to the petition until you’ve made your continuance request. Once you respond to a timely served DVRO petition, any continuance request is left to the very broad discretion of the trial court.

W. Bradley Electric v. Mitchell Engineering
02/28/24 CA 1/5: A167137 – J. Chou
https://www.courts.ca.gov/opinions/documents/A167137.PDF

In this partially published opinion, the Court of Appeal affirmed the denial of a motion to set aside a stipulated judgment under Code of Civil Procedure section 473(d).

Code of Civil Procedure section 473(d) is a mechanism that allows the trial court to set aside any void judgment or order. Here, a settlement agreement was entered into between the parties. Mitchell, however, contended that the agreement was entered into by their attorney without Mitchell’s consent. Mitchell claimed that this meant the resulting dismissal order was void. The Court of Appeal disagreed.

First, the Court of Appeal opined, but did not hold, that the entry of an order or judgment made through a party’s attorney but without the consent of that client, is voidable, not void. This result comported “with common sense and the public policies favoring settlement and the finality of judgments.” Holding otherwise would present a danger that “[i]f an authorized judgment were void, then it would be a nullity, subject to being set aside by any party—including an opposing party with buyer’s remorse regardless of the client’s wishes and interests.”This result is contrary to Romadka v. Hoge (1991) 232 Cal.App.3d 1231, which held that an “attorney’s unauthorized disposition of clients’ substantive rights is invalid and a judgment based thereon is therefore void.”

The Court of Appeal in this case ultimately concluded that it need not reach the question of whether the order is void or voidable because evidence supported that Mitchell ratified the settlement by failing to lodge an objection or promptly taking steps to fix the problem.

Finally, the Court of Appeal concluded that “whether or not the judgment of dismissal may be deemed void due to [the attorney’s] failure to obtain Mitchell’s express consent to its entry, Mitchell fails to establish that the trial court abused its discretion in denying relief.” This is because Mitchell’s attorney stated that Mitchell knew or should have known that the dismissal was going to be entered, and that Mitchell knew about the entry of dismissal well before Mitchell sought to vacate it.

Author’s Note: That the trial court has discretion at all to not set aside a void order initially did not make much sense to me. Neither the passage of time nor ratification can ordinarily resurrect a void order. This is the most crucial distinction between a void and voidable order.

What is unique about this case is that the defect that might have made the order void, the lack of consent, could realistically be cured by subsequent client consent. That would not work with say, a UCCJEA jurisdiction issue because consent is irrelevant on subject matter jurisdictional questions. What I think the Court of Appeal is saying is that, even if the order was void because of lack of client consent, attaining that consent would have been one of the rare cases where a void order stops being void. I should note that, to me, the ability to ratify a void order means it is voidable. For instance, a nullity of a marriage based on fraud is considered voidable precisely because the marriage can be ratified by subsequent conduct.

Geffner v. Board of Psychology
02/28/24 CA 2/3: B322991 – J. Edmon
https://www.courts.ca.gov/opinions/documents/B322991.PDF

In this case, the California Board of Psychology revoked the license of Dr. Robert Geffner after concluding that he evaluated two children for suicidality without their father’s consent, evaluated the children without consulting their existing therapist, and made custodial recommendations that went beyond the scope of an emergency risk assessment. The trial court denied Geffner’s writ of mandamus, but the Court of Appeal reversed.

The Court of Appeal concluded that Dr. Geffner did not violate the ethical standards to which psychologists are bound. First, although Ethical Standards 3.10 and 9.03 require psychologists to, among other things obtain appropriate permission from a legally authorized person if such substitute consent is permitted or required by law, it does not clarify who is a legally authorized person. In this case, since the children’s suicidal and homicidal ideations were an emergency, Mother alone could consent to Geffner’s evaluation. After defining an emergency as the establishment of an “exigency of so pressing a character that some kind of action must me taken,” the Court of Appeal concluded that there was a risk of serious injury to the children based on their ideations, which was an emergency that justified Dr. Geffner evaluating the children. The trial court’s conclusion to the contrary was error. In particular, the trial court apparently thought that a true emergency “does not allow time to write a report and requires hospitalization.” This reasoning was faulty, as it would require Dr. Geffner to “have known before he conducted his assessment the facts he learned as a result of conducting it.”

The Court of Appeal did agree with the trial court that the family court order providing the parties joint legal custody was irrelevant because the order did not require Mother to obtain consent for emergency treatment.

The Court of Appeal next concluded that the evidence did not support Dr. Geffner failed to contact the children’s therapist before completing his evaluation. Ethical Standard 3.09 provided Dr. Geffner with broad discretion. Here Dr. Geffner did not contact the therapist because Mother had told him the therapist was unavailable and because Dr. Geffner said he focused on the emergency. The Board of Psychology’s assertion that a treating therapist must be contacted in each and every instance, including emergencies, was plainly in conflict with the plain language of Ethical Standard 3.09.

Next, the Board and the trial court concluded that Dr. Geffner’s evaluation of the children should have been limited to identifying any imminent risk of harm and immediate interventions rather than making long-term custody recommendations. When Dr. Geffner recommended that the children cease contact with Father until they received more extensive treatment, the Board considered this an inappropriate custody recommendation. The Court of Appeal disagreed. Although his recommendations certainly implicated whether they should see Father, that does not “make it a custodial recommendation i.e., a recommendation mother should be granted sole legal and/or physical custody.” In this case, since Dr. Geffner found that seeing Father made the children want to kill themselves or Father, recommending no contact with Father was “substantively no different than saying” there was an imminent risk to the children if they had to see Father.

Sundholm v. Hollywood Foreign Press Assn.
02/27/24 CA 2/7: B324842 – J. Feuer
https://www.courts.ca.gov/opinions/documents/B324842.PDF

In this case, the Court of Appeal concluded that the trial court abused its discretion in granting a motion to disqualify counsel because there was not “any reasonable probability the privileged information” obtained by opposing counsel would have affected the outcome of the litigation. The trial court found that the attorney violated his ethical obligations when he “failed to cease reviewing documents when he realized they were potentially privileged.” The trial court, however, “failed to explain how Sundholm would use the privileged information to HFPA’s disadvantage in this lawsuit,” a “required material link.” Since HFPA had knowledge of precisely which confidential documents were in the opposing attorney’s possession, it was able to, but did not, express how that knowledge would have disadvantaged them in the litigation. Further, the appropriate mechanism for the attorney’s failure to respond to a related subpoena was not disqualification, but rather an order compelling discovery responses, imposing sanctions, or referring the attorney to the state bar.