Recent Family Law Cases
[Opinions available at: http://www.courts.ca.gov/opinions-slip.htm]
FAMILY LAW (current through 2/19/2021)
By: Michelle L. Kazadi, CFLS
Restraining Orders (Civil Harassment and Domestic Violence)
Queen Searles v. Michael Archangel
1/22/21, CA 2/7: B296011
Appellant argued that the trial court erred in denying her motion to waive traditional service of her Civil Harassment Restraining Order and allow her to serve Respondent through social media. Appellant filed and was granted her temporary restraining order (TRO). In her Petition, she described Respondent’s home address as “unknown/homeless”; and he was described as an “unknown vagabond-stalker.” After multiple unsuccessful attempts to serve Respondent and multiple continuances of the hearing, Appellant filed a motion to waive traditional service and for authorization to serve Respondent by social media. Specifically, stating that Respondent followed her public Facebook, YouTube and Twitter postings, and that she be granted leave to serve him by simultaneously posting the documents “to the Scribd website and linked to Facebook, Twitter and YouTube.” In her supporting declaration, Appellant stated that Respondent was intentionally making himself unavailable and described the efforts she had made to effect personal service. In a legal memorandum attached to her motion, Appellant quoted several out-of-state cases in which service of process by social media had been permitted, including Baidoo v. Blood-Dzrako (N.Y. Sup. Ct. 2015) 48 Misc.3d 309 [5 N.Y.S.3d 709] in which a New York family law court authorized service of the summons in a divorce action through a direct message to the defendant’s Facebook account (he had no email address). Appellant asserted that Respondent, like the defendant in the Baidoo case, could not be personally served and, because no one knew where he lived, he also could not be served by mail. Accordingly, she argued the court had discretion pursuant to CCP §413.30 to authorize service in a different manner, provided it was reasonably calculated to give actual notice to the party to be served, as she asserted use of social media would be in this case. The trial court denied the motion and directed her to keep trying to serve Respondent as required by CCP §527.6(m). After multiple additional continuances, due to lack of service, the court dismissed the petition for civil harassment restraining order without prejudice and dissolved the TRO.
CCP §413.30 provides, “Where no provision is made in this chapter or other law for the service of summons, the court in which the action is pending may direct that summons be served in a manner which is reasonably calculated to give actual notice to the party to be served and that proof of such service be made as prescribed by the court.” Appellant argued that given her inability to effect personal service on a homeless Respondent, CCP §413.30 authorized the court to allow service by social media as an alternative that was reasonably calculated to give actual notice of the case to Respondent. The court of appeals found that the Legislature has expressly mandated that the Respondent in a proceeding for a civil harassment restraining order be provided notice of the hearing, together with a copy of the petition and any TRO, only through personal service. (CCP §527.6(m).) Thus, CCP §413.30 is inapplicable in this situation: [t]he necessary prerequisite for the court to authorize an alternative method of service—that “no provision is made in this chapter or other law for the service for summons”—is unsatisfied. Furthermore, CCP §527.6 does not state that personal service is preferred, but other means of service may be employed if personal service is not feasible. Finally, the Legislature’s decision not to include a comparable provision for alternate forms of service in CCP §527.6 precludes rewriting the statute to allow service other than by personal delivery. The decision of the trial court is affirmed.
In re the Marriage of Carol and William Carlisle
1/5/21; Certified for Partial Pub. 1/28/21, CA 3: C084891
Plaintiff filed a request for a Domestic Violence Restraining Order (DVRO) against Defendant, her then- husband, during a dissolution of marriage proceeding. The trial court granted a two-year DVRO. Defendant appealed. While that appeal remained pending, a little more than a month before the original DVRO was set to expire, Plaintiff filed a request to renew the DVRO. After a hearing, the trial court granted Plaintiff’s request, renewing the DVRO for five years. In an unpublished opinion, the Appellate Court affirmed the issuance of the original DVRO.
Defendant appeals from the granting of the renewed DVRO. Defendant asserts that: (1) the trial court lacked jurisdiction to renew the DVRO while the appeal from the granting of the original DVRO remained pending, (2) the trial court erred in rendering its decision without reading the pleadings, (3) the trial court erred in excluding the witnesses and exhibits he offered, (4) the trial court erred in rendering its decision without considering the case law in the pleadings, (5) the trial court did not afford him sufficient time to present his defense, and (6) in effect, substantial evidence does not support renewal of the DVRO.
The court of appeals responded to each assertion as follows:
(1) “A domestic violence restraining order is a type of injunction, as it is an ‘order requiring a person to refrain from a particular act.’” (Loeffler v. Medina (2009) 174 Cal.App.4th 1495, 1503-1504 (Loeffler).) “Where an injunction of limited duration is appealed, the trial court has power to extend the injunction pending disposition of the appeal if doing so would serve the ends of justice.” (City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 482.) Thus, the trial court had the authority to renew the DVRO pending disposition of the appeal from the granting of the original DVRO if doing so would serve the ends of justice. The trial court, having determined that Plaintiff satisfied her burden in seeking renewal of the DVRO, necessarily concluded that renewing the DVRO “would serve the ends of justice.” Contrary to Defendant’s contention, the trial court did not lack jurisdiction to renew the DVRO. The appeals court opined that being asked the question of whether a DVRO, which is being appealed, may be modified is not the same question as whether a DVRO, which is being appealed, may be renewed. The Appellate Court only addressed the renewal question.
(2) As the appellant, Defendant has the burden of affirmatively demonstrating prejudice. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 455 (Christ).) Prejudice is not presumed. (Code Civ. Proc., §475.) Reversal is not warranted unless the alleged error resulted in a miscarriage of justice. (Cal. Const., Art. VI, §13; Evid. Code, §53, subd. (b).) Defendant makes no argument addressing prejudice. Moreover, the record demonstrates that the trial court was apprised of the parties’ arguments and allegations of fact at the hearing.
(3) “No evidence is admissible except relevant evidence.” (Evid. Code, §350.) “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, §210.) In light of the court’s determination not to consider the allegation involving a trespasser at Plaintiff’s house, these witnesses, whose testimony was only relevant to whether Defendant was the trespasser, had nothing relevant to offer at the hearing. Thus, the trial court did not abuse its discretion in refusing to allow Defendant to present these witnesses and the related exhibit. Moreover, Defendant failed to make any argument as to how he was prejudiced by the trial court’s evidentiary determinations. (See generally Cal. Const., Art. VI, §13 [reversal not warranted unless alleged error resulted in a miscarriage of justice]; Evid. Code, §353, subd. (b) [same]; Christ, supra, 2 Cal.App.5th at p. 455 [appellant has the burden of affirmatively demonstrating prejudice]; Code Civ. Proc., §475 [prejudice is not presumed].) Defendant’s contentions concerning the trial court’s evidentiary rulings are without merit.
(4) Defendant failed to offer any support for his contention that the trial court was not familiar with the applicable case law, a contention that is belied by the record.
(5) There is no support in the record for Defendant’s contention that the trial court did not afford him sufficient time and opportunity to present his case. Additionally, Defendant has not set forth what he would have done differently had he not felt rushed by the trial court. Accordingly, Defendant has not shown prejudice.
(6) Renewal of a DVRO requires a finding, by a preponderance of the evidence, that there is a “reasonable apprehension of future abuse.” (Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, at pp. 1279, 1283, 1290; accord, Lister v. Bowen (2013) 215 Cal.App.4th 319, at p. 333.) “[T]his does not mean the court must find it is more likely than not future abuse will occur if the protective order is not renewed. It only means the evidence demonstrates it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable.” (Ritchie, at p. 1290; accord, Lister, at p. 333.) “An appellant asserting lack of substantial evidence must fairly state all the evidence, not just the evidence favorable to the appellant. ‘[A]n appellant who challenges a…finding by the judge in a nonjury trial…must marshal all of the record evidence relevant to the point in question and affirmatively demonstrate its insufficiency to sustain the challenged finding.’” (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 415.) “An appellant who fails to cite and discuss the evidence supporting the judgment cannot demonstrate that such evidence is insufficient.” (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.) “An appellant…who cites and discusses only evidence in [his or] her favor fails to demonstrate any error and waives the contention that the evidence is insufficient to support the judgment.” “If the appellant fails to fairly state all material evidence, we may deem waived any challenge based on insufficiency of the evidence.” (Chicago Title, at p. 415.) Here, Defendant’s brief relies only on material that supports his contentions, and ignores the material supporting the judgment. Thus, Defendant has forfeited his contentions addressed to the sufficiency of the evidence supporting the trial court’s determination. The order is affirmed.
Hilja Keading et al. vs. Kenton Keading
2/18/21, CA 1/3: Consolidated A151468, A153075, A152034
Appellant, Kenton Keading, appeals from a judgment and orders in related actions arising from claims asserted by his sister, Hilja Keading, that he committed elder abuse against their deceased father. Appellant appeals from the judgment which found him liable for elder financial abuse through undue influence and ordered him to pay approximately $1.5 million in damages. In the published portion of this opinion, the appeals court held that substantial evidence supported the trial court’s finding of elder financial abuse and concluded that Probate Code §859 authorized an award of double damages for the commission of elder financial abuse without a separate finding of bad faith.
Appellant argued substantial evidence did not support the trial court’s finding of elder financial abuse. Pursuant to Welfare and Institutions Code §15610.30, financial abuse of an elder occurs when a person “[t]akes, secretes, appropriates, obtains, or retains…real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.” (Welfare and Institutions Code §15610.30, subd. (a)(3).) Welfare and Institutions Code §15610.70 defines “undue influence” as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” (Welfare and Institutions Code §15610.70, subd. (a).) Here, the court of appeals found that there was substantial evidence supporting the trial court’s finding of elder financial abuse. The record amply established that Appellant took, obtained, or retained both real and personal property belonging to his father. Appellant executed the grant deed to remove the Property as a trust asset to be shared with his sister, essentially attempting to deed the Property to himself. Appellant also obtained stock certificates belonging to his father and exercised rights over his father’s car when he sold it. The record also evidenced each of the four considerations for undue influence under section Welfare and Institutions Code §15610.70. Estate of Sarabia (1990) 221 Cal.App.3d 599 (Sarabia), superseded by statute, describes the common law test for undue influence, and addresses when a presumption of undue influence arises. Here, the trial court did not rely on a presumption and instead made a direct finding of undue influence under the statutory standard based on all relevant facts and circumstances. Nevertheless, even under the common law test, substantial evidence supports a presumption of undue influence.
Appellant also argues the court erroneously construed Probate Code §859 by imposing double damages for his commission of elder financial abuse without a finding of bad faith. Probate Code §859 provides: “If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to a conservatee, a minor, an elder, a dependent adult, a trust, or the estate of a decedent, or has taken, concealed, or disposed of the property by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the person shall be liable for twice the value of the property recovered by an action under this part.”
The language of Probate Code §859 is not ambiguous in specifying when a bad faith finding is necessary for double damages. The statutory language contains three different clauses describing the three different categories of conduct that can support double damages, each of which is separated by the conjunction “or.” The first two categories require a separate finding of bad faith but the third one—applying when a person “has taken, concealed, or disposed of the property…through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code”—does not. Because the trial court found Appellant took property by committing elder financial abuse within the meaning of Welfare and Institutions Code §15610.30, double damages were proper without a separate finding of bad faith. Judgment affirmed.
DEPENDENCY (current through 2/18/2021)
By: John Nieman
In re Brianna S.
1/28/21, CA 2/2: B301802
There are a few ways to modify orders in Juvenile Dependency cases, each designed (more or less) for particular circumstances. In this case, the trial court granted a request filed under Welfare and Institutions Code §385 to remove children from the care and custody of the grandmother (who was also a de facto parent). Initially filed as a Welfare and Institutions Code §387 petition that was dismissed with prejudice for reasons unspecified, a second attempt was made months later, but ultimately under Welfare and Institutions Code §385. Perhaps, since the first Welfare and Institutions Code §387 petition was dismissed with prejudice, counsel believed it would not violate the prejudice attached to the first Welfare and Institutions Code §387 petition if a similar request was filed under Welfare and Institutions Code §385. In any event, the Appellate Court concluded that removal from a grandmother who is foremost a relative, required a Welfare and Institutions Code §387 petition (for placement with a non-relative). The fact that the grandmother was also a de facto parent was irrelevant to the type of petition required for removal. Reasons cited by the court include 1) the plain words of the statute being more apropos to removal from a relative, 2) statutory construction, and 3) precedent. Though it was erroneous to employ Welfare and Institutions Code §385, the error was harmless since the trial court followed the procedural requirements of Welfare and Institutions Code §387.
In re K.B.
1/29/21, CA 2/8: B305420
Modification of the published case merely corrects errors that might reasonably cause confusion. The substantive holding is unaffected by the changes.