Recent Family Law Cases

12/21/2022, CA 2/5: B316280

https://www.courts.ca.gov/opinions/documents/B316280.PDF

Since Family Code section 271 sections are available only against a party, it was error to order these sanctions payable by the attorney.

As to Mother, the Court of Appeal, in dicta, suggested that the trial court could not issue Family Code section 271 sanctions pursuant to its own motion. It noted the absence of such language in Family Code section 271, while also noting that other sanctions statutes explicitly indicate that the trial court could issue sanctions on its own motion. It further noted that in “order to obtain an award under [Family Code section 271], the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.” (Emphasis in original.)

Even if the trial court could issue a Family Code section 271 sanctions order on its own motion, the facts of this case did not justify one. In this case, the trial court was essentially sanctioning Mother “not for taking actions that frustrated settlement efforts, but for taking litigation positions with which the court disagreed,” which was improper. Generally, one cannot be sanctioned under Family Code section 271 for filing a motion, unless that motion “is so devoid of merit that no reasonable person would have pursued it.”

It is noteworthy that the Court of Appeal was clearly concerned with how the trial court conducted itself. (“[O]ne cannot read this appellate record without coming away with the impression that the family court was just miffed about being accused of bias. On a personal level, this is understandable, but exercise of the judicial function requires more…”)

12/16/22 CA 4/1: D077999

https://www.courts.ca.gov/opinions/documents/D077999.PDF

The Majority Opinion

After first noting that hearsay evidence was admissible at a hearing on a workplace violence restraining order and at a hearing on civil harassment restraining order, the Court of Appeal concluded that hearsay evidence was also admissible at a Gun Violence Restraining Order hearing.

In particular, it relied on the following statutory language:

“In determining whether to issue a gun violence restraining order [after notice and hearing], the court shall consider evidence of the facts identified in paragraph (1) of subdivision (b) of Section 18155 and may consider any other evidence of an increased risk for violence, including, but not limited to, evidence of the facts identified in paragraph (2) of subdivision (b) of Section 18155.” (§ 18175, subd. (a), italics added.)”

It noted similar language in both the workplace violence restraining order context and the civil harassment restraining order context and the cases that have interpreted that language to mean hearsay is admissible. Of note, it referred to Code of Civil Procedure section 527.8, which states the court “shall receive any testimony that is relevant.” (Emphasis added.) This “plain language…suggests that the Legislature intended to permit a trial court to consider all relevant evidence, including hearsay evidence.”

It noted that restraining orders are “procedurally truncated, expedited, and intended to provide quick relief to victims of civil harassment.”

While domestic violence restraining orders are also truncated and expedited procedures, I could not find language in the DVPA that suggested that a trial court can consider hearsay evidence. There is nothing indicating that a court could consider “any evidence” or “any testimony.”

There is, however, similarly broad language in Family Code section 217 (“the court shall receive any live, competent testimony that is relevant and within the scope of the hearing”) but, interestingly enough, this has been interpreted to mean that hearsay is not admissible. (See In re Marriage of Swain (2018) 21 Cal.App.5th 830, 842 [“Under section 217, absent a stipulation or a finding of good cause, Leon had a right to any live testimony that was ‘relevant and within the scope of the hearing.’ (§ 217, subd. (a).) Such live testimony included the opportunity to cross-examine Sandra concerning statements in her Declaration on which the trial court might rely. The proper remedy for the absence of an opportunity for cross-examination was to exclude her written Declaration from evidence.].)”

Justice Dato’s Dissent

In a lengthy dissent, Justice Dato summarized his view by rhetorically asking “Did the Legislature mean by this that relevance is the only criterion for admissibility, or simply that the court should consider any relevant testimony that is otherwise admissible?” (Emphasis in original.)

He wrote that “[w]here the Legislature has crafted a rule of general application, based on principles of due process [the hearsay rule], that it has expressly decreed should be applied except as provided otherwise, we should be certain the Legislature has in fact provided otherwise.” To Justice Dato, there was no such certainty in the plain language in the statute or in the legislative history.

This was the first opinion I’ve ever read that included a table to get it’s point across:

	Emergency	Ex Parte	Noticed Hearing
Standard for Issuing the GVRO	Reasonable cause to believe the subject poses an immediate and present danger of gun violence.  (§ 18125, subd. (a)(1).)	A substantial likelihood that the subject poses a significant danger, in the near future, of gun violence. (§ 18150, subd. (b)(1).)	The subject poses a significant danger of gun violence. (§ 18175, subd. (b)(1).)
Scope of Admissible Evidence	Hearsay affidavit of law enforcement officer admissible.  (§§ 18125, subd. (a), 18140, subd. (a).)	Oral testimony in court or affidavit under oath, plus “any additional information provided to the court . . . .”  (§§ 18150, subds.  (b), 18155, subd. (a)(2).)	The court “shall consider evidence of the facts identified” in section 18155, subdivision (b)(1) and “may consider any other evidence of an increased risk for violence . . . .”  (§ 18175, subd. (a).)

That point was this: “In general, as the urgency decreases, the need to dispense with evidentiary rules and procedural protections should decrease as well.”

Will the holding in this case eventually be extended to DVROs?

Even under the majority’s approach in this case, given the DVPA’s lack of broad language suggesting “any testimony” or “any relevant evidence” is admissible at a restraining order hearing, the Swain court’s interpretation of Family Code section 217 to mean that hearsay is generally inadmissible in family law cases, and that Family Code section 217 has been expressly applied to domestic violence restraining order hearings (See Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 829, fn. 4.), one could make a compelling argument that, absent an exception, hearsay is inadmissible at domestic violence restraining order hearings.

12/14/2022, CA 4/3: G060823

https://www.courts.ca.gov/opinions/documents/G060823.PDF

First, some background: if a nonparty consumer, after receiving notice that personal records are being sought under Code of Civil Procedure section 1985.3, objects to the production of its personal records, the witness or deposition officer is generally not required to produce them absent a court order. The subpoenaing party may then bring a motion to enforce the subpoena within 20 days of the objection.

In this case, the Court of Appeal held that after the 20-day deadline expires, the subpoenaing party cannot move to enforce the subpoena over the non-party’s objection through a motion to compel under 2025.480, which has a different 60-day deadline.

11/14/2022, Certified for Publication on 12/6/2022, CA 4/2: E075748

https://www.courts.ca.gov/opinions/documents/E075748.PDF

This case involved competing requests for domestic violence restraining orders. Family Code section 6305 provides that “the court shall not issue a mutual order enjoining the parties from specific acts of abuse” unless it makes “detailed findings of fact indicating that both parties acted as a primary aggressor and that neither party acted primarily ins elf-defense.”

Husband challenged “the trial court’s denial of his petition, arguing (1) the trial court misunderstood the scope of its discretion to the extent it believed section 6305 constrained its authority to simultaneously grant both requests for protective orders in this case; (2) even if section 6305 applies, the trial court abused its discretion by choosing between two identified aggressors in order to grant relief to only one of them; and (3) the trial court abused its discretion by failing to grant Husband’s request for custody of the parties’ children.”

The Court affirmed, concluding that “section 6305 does govern the parties’ competing requests for protective orders; the statute expressly permits the trial court to weigh the acts of the parties to determine if one should be considered the dominant aggressor before issuing a mutual restraining order; and the trial court did not abuse its discretion in denying Husband’s custody request.”

11/21/2022, CA 3: E095046

https://www.courts.ca.gov/opinions/documents/C095046.PDF

Where the original Nevada judgment was valid and the Nevada court had jurisdiction over the judgment debtor in Nevada, a California court need not have personal jurisdiction over the judgment debtor to either register the Nevada judgment as a sister-state judgment in California or enforce the judgment in California.

01/19/2022, CA 5: F083104

https://www.courts.ca.gov/opinions/archive/F083104.PDF

Yes, this case is from January, but I have not seen it get the attention I think it deserves so I’m putting it here.

Assuming there is an appropriate declaration from the custodian of records, are responses to a deposition subpoena for a production of business records admissible over authenticity/hearsay objections if the custodian or other qualified witness does not actually testify at the hearing? This case indicates that they are.

According to this case, the trial court erred in sustaining an authenticity and hearsay objection to two “documents received in response to subpoenas to nonparties” that were included in a declaration from an attorney.

The Court of Appeal stated:

 “[T]he objections on these grounds was contrary to the rules of evidence. The title officer’s communication was obtained by J & A in response to a subpoena for records and was provided with an affidavit by the custodian of records for Fidelity National Financial. The affidavit provided by the custodian of records explains the documents provided were true copies of requested files, and those documents were made and kept in the usual course of business…Copies of nonparty business records produced in response to a subpoena are admissible if accompanied by declaration from the custodian of records, as is the case here. (Evid. Code, § 1562.) Also, as business records, they are subject to an exception to the hearsay rule. (Evid. Code, § 1271.) Under these circumstances, the trial court abused its discretion in sustaining the objections to the documents based on hearsay and authenticity concerns.”

11/30/22, CA 2/8:  B313378

https://www.courts.ca.gov/opinions/documents/B313378.PDF

This is a case where evidence of head trauma was the basis for finding that the mother failed to protect her child from physical harm. The harm was 2 subdural and one subacute hematomas initially without medical explanation. One was associated with an unstable arachnoid cyst. The child had suffered 2 falls, but neither instance evinced abuse nor neglect. The medical workup relied upon by the Department of Children and Family Services (DCFS) opined that because the likelihood that the injuries were caused by medical conditions was low, the most likely cause was non-accidental trauma. Mother had sole custody of the 11-month-old and was appropriately attentive and responsive to the child’s symptomology that led to the discovery of the injuries. They lived with various relatives. There was no collateral evidence of abuse or neglect from anyone associated with the child.

Three issues were addressed on appeal. First was the appealability since the case was dismissed with joint custody to mother and father after the appeal was filed. The appellate court determined the appeal was not moot because mother would potentially suffer significant harm without addressing the issues she raised, and that the review might undermine the jurisdiction of the trial court.

Second was the sufficiency of the evidence for jurisdiction. There was expert testimony about the ways that the child’s preexisting congenital medical condition could have resulted in the injuries. That was not controverted by the medical evidence presented by the DCFS. Those medical conditions were: larger than normal intra-cranial spaces; further brain bleeding from the arachnoid cyst after removal from mother’s care; macrocephaly; and neomembranes. The appellate court essentially ruled that there was no affirmative evidence of abuse or neglect; the trial court improperly relied on the unlikelihood that injuries would be caused by congenital conditions.

Finally, in its decision the trial court articulated its reliance on Welfare and Institutions Code §355.1, which shifts the burden to parents to rebut a medical conclusion that the injuries suffered by a child are most likely non-accidental. Such assertions are these days typically made, as was here, in the petition allegations. This serves as notice to the parent of the shift in burden. The appellate court, relying on In re A.S. (2011)

202 Cal.App.4th 237, 242–243 and Estate of Trikha (2013) 219 Cal.App.4th 791 at 803, ruled that rebuttal evidence needn’t be conclusive to re-shift the burden of proof back to the petitioner. In any event, the appellate court ruled that mother soundly rebutted the presumption. Notably, DCFS never relied on §355.1 and argued that jurisdiction was supported by a preponderance of the evidence.

Reversed and remanded to vacate the jurisdictional findings and order and dismiss the petition.

12/12/22, CA 2/5:  B319752

https://www.courts.ca.gov/opinions/documents/B319752.PDF

This is an Indian Child Welfare Act (ICWA) case. Mother appealed the termination of parental rights orders, alleging an inadequate inquiry was made as required by Welfare and Institutions Code §224.2(b), that requires inquiry into extended family members and others about the child’s possible native American ancestry. The appellate court ordered a conditional reversal based upon a stipulated agreement pursuant to Code of Civil Procedure §128(a)(8). The case was published to give voice to a dissent. The dissent claims that inquiring of a NREFM (nonrelative extended family member -though in fact various relatives also needed to be asked upon remand) is incorrect. It also asserts that the statute is inartfully written, among other complaints.

12/14/22, CA 2/1:  B318627

https://www.courts.ca.gov/opinions/documents/B318627.PDF

This is an Indian Child Welfare Act (ICWA) case. Mother appealed the termination of parental rights orders, alleging there was an inadequate inquiry by the Department of Children and Family Servies (DCFS) into extended family members of the possible applicability of the ICWA. The appellate court found the failure to inquire harmless. It opined that because relatives and mother had every reason to assert Native American ancestry (and thus ICWA noticing) for purposes of relative placement, but failed to do so, this implied that there was none in the family. Similarly, it asserted that there was additional motive to establish any possible applicability of the ICWA because of increased standards of proof associated with an Indian Child that inure to protect parental rights -essentially another motive to apply the ICWA were that a possibility. Notably as regards to this latter reason, the child was not placed with family (but in non-relative foster care). Additionally, it reasoned that the parents being well connected with their various family members boded well for the accuracy of their initial statements that there was no Native American ancestry in their respective families.