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Recent Family Law Cases

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Recent Family Law Cases
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FAMILY LAW (current through 11/16/2020)
By:  Michelle L. Kazadi, CFLS


Michelle Kramer v. Traditional Escrow, Inc., et al.
10/20/20, CA 4/3: G058522

Plaintiff filed a wage and hour lawsuit against her employer, Defendants, and its alleged alter ego. A few months after Defendants answered the initial complaint, their counsel withdrew, and Defendants subsequently chose not to participate in the case. Plaintiff continued to serve Defendants with all case documents, including an amended complaint, at their address of record. But, in violation of the California Rules of Court, Defendants changed their mailing address without giving notice to plaintiff or the trial court. As a result, they did not receive any of the documents that plaintiff served on them after their counsel withdrew. Eventually, default and default judgment were entered against them due to their failure to answer the amended complaint. Defendants filed a motion to set aside the default and vacate the default judgment, arguing they were entitled to equitable relief because they had been prevented from responding to the amended complaint due to extrinsic fraud and extrinsic mistake. The trial court granted the motion. Plaintiff appeals the trial court’s ruling, arguing equitable relief was unwarranted.

The trial court decided this motion under its inherent equitable powers. “A party who seeks to set aside a default judgment pursuant to the court’s equity power must make a substantially stronger showing of the excusable nature of his or her neglect than is necessary to obtain relief under . . . section 473.” (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1074.) A party seeking relief under the court’s equitable powers must satisfy the elements of a “stringent three-pronged test”: (1) a satisfactory excuse for not presenting a defense, (2) a meritorious defense, and (3) diligence in seeking to set aside the default. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981.) The trial court erred in finding that Defendants established the first and third prong. Reversed.

Kevin J. Moore v. The Superior Court of Orange County, Respondent, Bryna Barsky, RPI
11/16/20 CA 4/3: G058609

Trial court found Petitioner to be in contempt for his conduct at the MSC. The trial court fined Petitioner $900 for each of the following four categories of misconduct: (1) yelling and interrupting other participants; (2) falsely accusing opposing counsel of lying without explanation; (3) refusing to engage in settlement discussions; and (4) blocking the temporary judge from invoking the aid and authority of the supervising judge by threatening that this would unlawfully divulge settlement information. The court also ordered that RPI’s attorney fees and costs be paid by Petitioner.

Petitioner filed a motion to dismiss the contempt proceedings (i.e., after testimony was complete but before the trial court ruled on the merits). In his motion, Petitioner argued that the trial court lacked jurisdiction to proceed because there were insufficient allegations in the charging documents. Petitioner also argued insufficient evidence had been presented to find him guilty and that, as a substantive matter, violation of a local rule does not amount to contempt of court. The trial court denied Petitioner’s motion to dismiss the contempt charges. Petitioner promptly filed a petition for writ of review of the contempt judgment. The parties filed formal briefing and argued the matter before the Appellate Court.

Code of Civil Procedure §1209 sets forth twelve categories of conduct that can amount to civil contempt, including “(1) Disorderly, contemptuous, or insolent behavior toward the judge while holding the court, tending to interrupt the due course of a trial or other judicial proceeding”; “(5) Disobedience of any lawful judgment, order, or process of the court”; and “(9) Any other unlawful interference with the process or proceedings of a court.” (Code of Civil Procedure §1209(a)(1), (5), (9).) There are two types of civil contempt, direct and indirect contempt. This was not a “direct contempt” case since the offending conduct was not committed in Respondent court’s presence and punished summarily. (Code of Civil Procedure §1211(a).) Instead, this was an “indirect contempt,” i.e., “not committed in the immediate view and presence of the court.” (Code of Civil Procedure §1211(a).) Although the settlement officer was acting as a temporary judge at the settlement conference, he did not pursue summary contempt proceedings (we express no opinion on whether he should or could have done so). (See Rosenstock v. Municipal Court (1976) 61 Cal.App.3d 1, 7-8.) The trial judge subsequently initiated indirect contempt proceedings based on reports of Petitioner’s behavior she received at the settlement conference.

An “indirect contempt” requires a sequential series of steps.  Here, every required step was taken. An affidavit was presented to the court; an order to show cause issued; the order to show cause was served on Petitioner; a full hearing (with witnesses) was conducted; and the trial court made findings and then imposed punishment. With that in mind, we turn to the issues raised by the petition. Petitioner asserts the contempt order must be vacated in its entirety because (1) the court lacked subject matter jurisdiction; (2) Petitioner’s due process rights were violated; (3) counts three and four were not supported by substantial evidence; (4) falsely accusing opposing counsel of lying or refusing to engage in settlement discussions do not amount to contempt; (5) there was inadequate warning that Petitioner’s conduct at the conference would result in contempt charges; and (6) the award of attorney fees and costs was unauthorized. The parties were asked to address a seventh issue, the applicability of Penal Code §654 to the four contempt convictions.

The Appellate Court was not persuaded by Petitioner’s argument that the charging documents insufficiently alleged a violation of a court order. But the Appellate Court did not need to resolve this issue because Petitioner was not convicted of disobeying a court order. He was convicted of other contemptuous behavior at the conference, described in detail in the settlement officer’s declaration. Violating a court order is a “common example” of indirect contempt (Koehler v. Superior Court (2010) 181 Cal.App.4th 1153, 1166-1167); it is not the only conduct upon which indirect contempt proceedings may be brought.

The order to show cause did not give Petitioner notice that he faced three distinct counts for acting in bad faith at the settlement conference. Under these circumstances, it violates due process to convict Petitioner of more than one count of contempt since he had inadequate notice that he faced four separate charges of contempt for his rude and unprofessional conduct during the 15-minute settlement conference. Petitioner demonstrated a total lack of respect for the court, the settlement officer, opposing counsel, and the opposing party. This was contemptuous. Petitioner raised the prospect of opposing counsel’s death in a manner that upset counsel’s client. Petitioner laughed with his client and associate after the utter failure of the settlement conference. No explicit contempt warning was required to punish Petitioner for a single count of indirect contempt under the circumstances of this case.

Petitioner raises a substantial evidence challenge to counts three and four. Our analysis above, which eliminates all but a single conviction, moots this issue. Evidence supporting count one (yelling and obstreperousness), count two (accusing opposing counsel of lying without explanation), count three (refusing to engage in good faith settlement proceedings), and count four (“blocking” the settlement officer from seeking the help of a judicial officer) are properly considered together to establish the sufficiency of the evidence to support a single contempt conviction for Petitioner’s bad faith conduct at the settlement conference.

As to the issue of whether a court can award attorney fees and costs under Code of Civil Procedure §1218(a) when the contempt at issue is not for violating a court order? The Appellate Court concluded that the answer to that question is no. The contempt order is invalid and annulled with regard to three counts and three $900 fines, as well as the award of attorney fees and costs. The four counts of contempt are consolidated and reduced to a single count for Petitioner’s bad faith participation and obstreperous misconduct at the settlement conference. This single count of contempt and accompanying $900 fine is sustained. The clerk of the court is ordered to provide a copy of this opinion to the State Bar. (Bus. & Prof. Code, § 6086.7(a)(1).)

Sanctions/Attorney Fees and Costs

Kim Levine et al. v. Janet Berschneider, Defendant and Respondent; John B. Richards, Objector and Appellant
10/29/20, CA 2/6: B300824

Appellant represented tenants in litigation against their landlord, Respondent. The lawsuit settled. Because one of the Plaintiffs was a minor, the settlement required approval from the trial court. On April 17, 2019, the trial court approved the minor’s compromise. On May 22, 2019, Appellant filed an ex parte application to shorten time on a motion to enforce the settlement agreement. He contended Respondent and her counsel were taking too long to pay the Plaintiffs the amounts agreed to in their settlement. The trial court set the matter for hearing on June 7, 2019. On June 3, 2019, Appellant received checks from counsel for Respondent’s office, paying the settlement in full. Appellant, nevertheless, appeared at the June 7 hearing. He told the trial court, “I haven’t received word from opposing counsel. I don’t know – has there been any communication with the Court?” The trial court said there had not been. Appellant confirmed that he served opposing counsel by email with the motion to enforce the settlement agreement. The trial court granted the motion. Its order found counsel for Respondent “in contempt for willfully failing to comply with [the] April 17, 2019 order,” and ordered respondent “to immediately disburse” the settlement funds. The trial court also ordered counsel for Respondent to pay monetary sanctions of $4,630.30 to the Plaintiffs within 10 days. At no time during the brief June 7 hearing did Appellant inform the trial court that the settlement had already been paid in full.

Three days later, Respondent filed an ex parte application for relief from the June 7 order pursuant to Code of Civil Procedure §473; for reconsideration of the order pursuant to Code of Civil Procedure §1008; for an order to show cause against Appellant for presenting false information to the court; and alternatively for an order staying the June 7 order pending hearing on a regularly noticed motion. Respondent requested the trial court reconsider its order and consider sanctioning Appellant because he did not inform the court that he received the settlement checks before the June 7 hearing.  Appellant filed a written opposition to the ex parte application in which he contended there was no basis for relief under either Code of Civil Procedure §473 or Code of Civil Procedure §1008. He also contended that his statements at the June 7 hearing were not false because the trial court never asked him whether he had received the settlement checks. Appellant made what he referred to as a special appearance at the June 12 hearing on Respondent’s ex parte application. He argued the trial court lacked personal jurisdiction over him because he had not been properly served with the ex parte application. He also argued the court lacked subject matter jurisdiction because there was no statutory basis for an award of sanctions against him.  At the hearing, the trial court entered an order vacating the sanctions against counsel for Respondent. It also issued an order to show cause against Appellant based upon his lack of candor with the Court.

A trial court’s judgment or order in a contempt matter is “final and conclusive.” (Code of Civil Procedure §1222.) It is not, however, appealable. (Code of Civil Procedure §904.1(a)(1).) Review of a contempt order is available only by petition for extraordinary writ. Therefore, the attempt to appeal from the contempt finding is dismissed.

Appellant contends the trial court lacked subject matter jurisdiction to award sanctions against him because there is no statutory basis for the award and because he did not make misleading or false statements to the trial court. He is incorrect. First, Civil Procedure §128.5 authorizes the trial court to order an attorney “to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bath faith, that are frivolous or solely intended to cause unnecessary delay.” (Civil Procedure §128.5(a).) A misrepresentation of material fact is subject to sanction under Civil Procedure §128.5. (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 128.)

Appellant contends the trial court lacked personal jurisdiction over him because he was not personally served with the ex parte application and order to show cause. “A general appearance by a party is equivalent to personal service of summons on such party.” (Civil Procedure §410.50(a).) Appellant made a general appearance when he filed a written opposition to the ex parte application in which he addressed the merits of the application and order to show cause. The trial court’s order for sanctions is affirmed. 

Veronica McCluskey v. Jeff Henry, et al., Defendants and Respondents, Michael Mogan, Objector and Appellant
11/2/20, CA 1/3: A158851

The trial court imposed sanctions on Plaintiff’s counsel, Appellant, in the amount of $22,159.50, reflecting attorney fees incurred in opposing the request to lift the stay. The trial court denied Plaintiff’s request for sanctions against Defendants for their filing of the motion for sanctions. Appellant appeals the sanctions order and Defendants move for sanctions against Plaintiff and Appellant for the filing of the appeal. The trial court’s sanctions order is affirmed and the request for sanctions on appeal is denied.

Plaintiff filed a claim for arbitration with the American Arbitration Association (AAA), which set initial deadlines for each party to pay filing fees. Plaintiff paid her fee and AAA acknowledged receipt. Defendants’ fee was sent by wire transfer, but AAA did not acknowledge receipt. AAA then informed all counsel that it had administratively closed the arbitration due to Defendants’ failure to pay their filing fee. Counsel for Defendants immediately contacted AAA, and several days later AAA responded it still had no record of payment. Counsel for Defendants sent AAA documentation of a wire transfer and an email explaining the payment had been sent together with payment for another AAA case, which perhaps was the source of confusion. AAA then emailed counsel for all parties that payment had been received after a delay in applying the fee to the correct case. For the case to move forward AAA needed confirmation from Plaintiff that she wants the case reopened.  AAA made multiple attempts to reach Plaintiff but received no response. Shortly thereafter, Appellant filed Plaintiff’s motion to lift the stay, and filed an amended motion on July 1. Plaintiff sought to lift the stay based on an assertion that, pursuant to section 1281.4 and section 3 of 9 U.S.C., Defendants’ failure to pay their filing fee by April 5, the deadline set by AAA, resulted in the administrative closing of the case and constituted a default, waiver, lack of good faith and fair dealings. The Defendants filed a motion for sanctions against Plaintiff and Appellant.

The trial court granted section 128.7 sanctions as the filing of the amended motion to lift the stay “was both factually and legally frivolous”: section 128.7 provides that a trial court may impose sanctions for the filing of a pleading if the court “concludes the pleading was filed for an improper purpose or was indisputably without merit, either legally or factually. Here, sanctions were imposed based on the substantive finding that the amended motion to lift the stay was “indisputably without merit either legally or factually.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.) A claim is factually frivolous if it is “not well grounded in fact” and it is legally frivolous if it is “not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.” “In either case, to obtain sanctions, the moving party must show the party’s conduct in asserting the claim was objectively unreasonable. A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’” Section 128.7 sanctions orders are reviewed under an abuse of discretion standard and therefore the trial court’s order is presumed correct and the Court of Appeals will not substitute their judgment for that of the trial court. Appellant failed to demonstrate any reason to reverse the sanctions order.

Cornerstone Realty Advisors, LLC, et. al. v. Summit Healthcare REIT, Inc., et. al.
11/4/20 CA 4/3: G057176

The trial court concluded that the Plaintiffs had violated several court orders requiring them to produce critical financial documents and, pursuant to Code of Civil Procedure §2023.030, imposed well justified terminating and monetary sanctions for their discovery abuses. The subject of this appeal is the monetary sanctions imposed by the trial court, and the appeal is pursued by Defendants, the parties that sought and received those sanctions. Defendants were awarded over $586,600 in sanctions on top of terminating sanctions, yet contend that the trial court did not award them enough to cover their attorney fees and costs incurred as a result of Plaintiffs’ discovery abuses and erred by not making Plaintiffs’ trial counsel jointly and severally liable for the monetary sanctions imposed.

As to the first question, the Appellate Court concluded that, with one exception, the trial court’s decision to impose monetary sanctions in the amount of $586,600 was consistent with the relevant law and principles governing discovery sanctions and is a reasonable exercise of the court’s discretion. California law authorizes a range of penalties for conduct amounting to “misuse of the discovery process.” (Code of Civil Procedure §2023.030; Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 12.) Code of Civil Procedure §2023.030 authorizes a trial court to impose monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions against “anyone engaging in conduct that is a misuse of the discovery process.” (See Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” (Code of Civil Procedure §2023.030(a).) Reasonable expenses may include attorney fees, filing fees, referee fees, and other costs incurred. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1285.)

Relevant to this appeal are three of the principles governing the award and amount of attorney fees and costs imposed as a discovery sanction. Of the principles governing discovery sanctions, three—the principle of compulsion, the principle of causation, and the principle of reasonableness—are relevant. Although Defendants had requested over $2 million in monetary sanctions, the trial court was not required to accept that figure, and had the authority and the duty under these principles to determine for itself the reasonable amount of attorney fees resulting from the misuses of discovery to impose as monetary sanctions. As to the second question, the Appellate Court concluded substantial evidence supported the trial court’s finding that Plaintiffs’ trial counsel did not advise the misconduct resulting in the discovery sanctions. The trial court read and considered the discovery referee’s report, which had recommended making Plaintiffs’ trial counsel liable for the monetary sanctions, but exercised its authority to reach a different conclusion based on its own assessment of the credibility of the declarants and the weight of the evidence. The trial court did not err in so doing. The order denying Defendants’ motion to impose monetary sanctions against Plaintiffs’ trial counsel is affirmed. The order imposing terminating sanctions and monetary sanctions against Plaintiffs is reversed to the extent it denies monetary sanctions against Plaintiffs based on the amount of attorney fees incurred by Defendants before July 12, 2016. In all other respects, the order imposing terminating sanctions and monetary sanctions against Plaintiffs is affirmed.

DEPENDENCY (current through 11/18/2020)
By:  John Nieman


In re D.N.
10/27, CA 2/1:  B302910

Welfare & Institutions Code (W&I) §352 allows continuances for any hearing given good cause and if not contrary to the best interests of the minor(s) involved.  Statutes limit the time a parent may have to reunify to 6, 12, 18, and 24 months variously under W&I §361.5(a).  Wherein the only bar to custody was a lack of housing, amongst other compelling circumstances, the trial court abused its discretion by not granting a continuance request under W&I §352 at a W&I §366.22 hearing, 31 months after protective custody from a parent.

In re Christopher L.
11/12, CA 2/1:  B305225

Penal Code (PC) §2625 requires incarcerated parents be made available to participate in adjudication under Welfare and Institutions Code (W&I) §300 and termination of parental rights W&I §366.26 hearings.  The trial court failed to apply PC §2625 and failed to appoint counsel for the father.  The trial court bypassed appellant father from receiving reunification services based upon W&I §361.5(b)(10).  The Court of Appeals ruled that failure to follow PC §2625 may be analyzed according to the lower Watson standard of harmless error analysis that the error be found with a “reasonable probability of a more favorable outcome” (People v. Watson (1956) 46 Cal.2d 818) as opposed to the higher Chapman standard of “harmless beyond a reasonable doubt” (Chapman v. California (1967) 386 U.S. 18, 24).  In noting facts present supporting bypass grounds under both W&I §361.5(b)(12) and W&I §361.5(e)(1), and rejecting any notion of applying a structural error analysis, the appellate court affirmed accordingly, and found the errors to be harmless under the Chapman standard as well.

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