Recent Family Law Cases

North American Title Company v. Superior Court
05/19/23, CA 5: F084913
https://www.courts.ca.gov/opinions/documents/F084913.PDF

This writ proceeding involved the interpretation of Code of Civil Procedure section 170.3 regarding the disqualification of judicial officers. In relevant part, Code of Civil Procedure section 170.3 provides:

“(4) If grounds for disqualification are first learned of or arise after the judge has made one or more rulings in a proceeding, but before the judge has completed judicial action in a proceeding, the judge shall, unless the disqualification be waived, disqualify himself or herself, but in the absence of good cause the rulings he or she has made up to that time shall not be set aside by the judge who replaces the disqualified judge.

(c)(1) If a judge who should disqualify himself or herself refuses or fails to do so, any party may file with the clerk a written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge. The statement shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification. Copies of the statement shall be served on each party or his or her attorney who has appeared and shall be personally served on the judge alleged to be disqualified, or on his or her clerk, provided that the judge is present in the courthouse or in chambers.”

The focus of this appeal was whether the failure to file the “written verified statement objecting to the hearing or trial” at the “earliest practicable opportunity” meant that the right to challenge the judge was waived. “[B]ased on the plain meaning of section 170.3, subdivision (b)(2), the developed body of caselaw discussing waiver as applied to statements of disqualification, and the fundamental guiding principles put in place to protect the parties’ and the public’s confidence in the judiciary,” the Court of Appeal concluded that  “disqualification based on the judge having personal bias or prejudice shall not be subject to waiver based on failing to present a statement at the earliest practicable opportunity under subdivision (c)(1).”

Lesley Feliz v. The County of Orange
5/19/23, CA 4/3: G060596
https://www.courts.ca.gov/opinions/documents/G060596.PDF

In relevant part, this case discusses the application of the equitable tolling of the statute of limitations.

The Court of Appeal first noted that “[e]quitable tolling is a ‘judicially created, nonstatutory doctrine’ that ‘suspend[s] or extend[s] a statute of limitations as necessary to ensure fundamental practicality and fairness.’ [Citation.] The doctrine applies ‘occasionally and in special situations’ to ‘soften the harsh impact of technical rules which might otherwise prevent a good faith litigant from having a day in court.’… “[E]quitable tolling [of the statute of limitations] today applies when three ‘elements’ are present: ‘[(1)] timely notice, and [(2)] lack of prejudice, to the defendant, and [(3)] reasonable and good faith conduct on the part of the plaintiff.’ [Citation.] These requirements are designed to ‘balanc[e] . . . the injustice to the plaintiff occasioned by the bar of his claim against the effect upon the important public interest or policy expressed by the [operative] limitations statute.’

The Court of Appeal next noted that “[o]ne scenario in which a plaintiff may benefit from equitable tolling is where the plaintiff ‘pursues one of several available legal remedies, causing it to miss the statute of limitations for other remedies it later wishes to pursue.’” Even though ‘pursuit of a remedy “embarked upon in good faith, [yet] found to be defective for some reason,” doesn’t foreclose a statute of limitations from being tolled.’ (Ibid.) Yet the party’s effort must be ‘objectively reasonable,’ meaning that its actions must be ‘fair, proper, and sensible in light of the circumstances.’”

In this case, the Court of Appeal concluded that the plaintiff was not entitled to equitable tolling because her claims were not objectively reasonable because she lacked diligence “in arguing that her state law claims should remain in federal court.”

*Author’s Note: I included this case as a reminder of the importance of equitable tolling. There are numerous statutes of limitations scattered along the family law realm. For instance, set aside motions under Code of Civil Procedure section 473, Family Code section 2120 et. seq., and Family Code section 3690 (governing set aside of support orders) are all time limited. Equitable tolling may be able to get you out of a jam even if it appears the deadline for the statute of limitations has passed.

Also, don’t forget my personal favorite statute of limitation tolling mechanism: Code of Civil Procedure section 351, which provides that the statute of limitations is tolled for as long as a defendant is outside of California. A two week vacation in the Bahamas could mean the difference between winning and losing!

Randy’s Trucking Inc., v. Superior Court
04/26/23, certified for publication on 5/18/23, CA 5: F084849
https://www.courts.ca.gov/opinions/documents/F084849.PDF

In this case, the Court of Appeal held that the trial court acted within its discretion when it ordered both raw testing data and the audio recording of a mental independent medical examination to plaintiff’s counsel, subject to a protective order. The Court of Appeal noted that “[t]here is no statutory authority…precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination.”

Next, the Court of Appeal addressed the issues by the doctor that conducted the neuropsychological examination at issue. She explained that allowing dissemination of the raw data and audio recording of the examination would compromise the validity of future tests, violate APA ethical rules, and allow attorneys to coach their clients to game these neuropsychological tests. The Court of Appeal was not convinced, holding that a “protective order would…ameliorate those dangers” and noting that she “did not explain why her ethical obligations would be violated if a court ordered her to disclose the raw data and audio recording to plaintiffs’ attorney subject to a protective order.”

The Court of Appeal “[w]eighed against this evidence [the] plaintiffs’ right to take discovery and cross-examine defendants’ expert witnesses, which includes being able to examine the expert on the matter upon which the expert’s opinion is based and the reasons for that opinion…Without the raw data and audio recording, plaintiffs cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the neuropsychologist’s opinion.”

People v. Portillo
05/15/23, CA 2/7: B315241
https://www.courts.ca.gov/opinions/documents/B315241.PDF

In this case, the defendants were convicted of grand theft. On appeal, they argued that there was “insufficient evidence to support their convictions because the evidence failed to establish the value of the stolen items.” The only evidence of the stolen items, 15 dumbbells, was the “testimony of the manager of the warehouse facility where the theft occurred, who testified to the prices listed on three retailers’ websites for the same product.” The defendants contended that this was inadmissible hearsay “because it was offered for the truth of the dumbbells’ value.” The Court of Appeal disagreed, concluding that “evidence of a retail price for a stolen item, whether based on an online listing or a brick-and-mortar store price tag, is admissible for the nonhearsay purpose of showing that a retailer is advertising the item for a specified price in the marketplace,” which was, in turn, “circumstantial evidence of the fair market value of the item, defined under California law as the highest price obtainable in the marketplace between a willing buyer and a willing seller…neither of whom is forced to act.”

The case begins by establishing the most important (and oft-misunderstood) aspects of the hearsay rule.

“When an out-of-court statement is offered for any relevant purpose other than to prove the truth of the matter stated, the statement is not hearsay.”

“When considering whether an out-of-court assertion is nonhearsay, the first and most basic requirement for applying the not-for-the-truth limitation . . . is that the out-of-court statement must be offered for some purpose independent of the truth of the matters it asserts.”

“For example, suppose A hit B after B said, ‘You’re stupid.’ B’s out-of-court statement asserts that A is stupid. If those words are offered to prove that A is, indeed, stupid, they constitute hearsay and would be inadmissible unless they fell under a hearsay exception. However, those same words might be admissible for a nonhearsay purpose: to prove that A had a motive to assault B. The distinction turns not on the words themselves, but what they are offered to prove.”

“The concept can prove analytically elusive when the words themselves also make an assertion…In Hart, for example, the [California Supreme Court] considered whether a construction foreman’s testimony that an invoice for pipes bearing the name ‘Keenan Supply’ and a stylized ‘K’ logo was hearsay in a case where the ultimate disputed fact was whether Keenan supplied pipes for the project. (Id. at p. 449.) The court held the name and logo on the invoice were nonhearsay because ‘the link between Keenan and the pipes does not depend on the word “Keenan” being a true statement that Keenan supplied the pipes. Instead, the link relies on several circumstances demonstrated by the evidence,’ including the foreman’s testimony that when the pipes were delivered, he ‘was given an invoice bearing Keenan’s name and logo,’ which matched the load delivered, in addition to evidence the company’s practice was to provide invoices bearing its name and logo with its pipes…The connection between the pipes and the supplier would have been evident ‘even if the company name and logo were not expressive of [the company’s] identity as the source.’”

The Court of Appeal noted that this case is one of those “analytically elusive” hearsay cases. This was because “price listings on a retailer’s website and price tags in a brick-and-mortar store can serve multiple evidentiary purposes to prove the ultimate fact: the value of stolen items.” “Some of these purposes implicate hearsay” while others do not.

In this case, the court used the example of a Walmart employee testifying that Walmart was offering to sell adjustable dumbbells for $357. Such testimony would be hearsay “if it [was] offered for the truth that Walmart was willing to sell the dumbbells for $357 or that Walmart believed the value of the dumbbells was $357.” However, the price tag “is also evidence of a retailer’s offer to sell the item for a specified price, for the purpose of inviting a marketplace transaction.” Accordingly, “[i]f evidence of the Walmart price tag in the store or price listing for $357 [was] presented to show Walmart was advertising the dumbbells for sale at $357, but not for the truth of whether Walmart would consummate a transaction at the advertised price (i.e., whether a customer could actually purchase the dumbbells from the retailer at this price), this would be a nonhearsay purpose because it is ‘relevant regardless of [its] truth.’”

Per the Court, “The question, then, is whether evidence of the existence of a retailer’s advertised price (the nonhearsay purpose) is relevant to show the fair market value, regardless of whether the individual retailer is willing to sell at that price or believes its price reflects the value of the item (the hearsay purposes). (Hart, at pp. 447-448; Hopson, at p. 432.)” The Court concluded that the evidence was relevant. This was because “[t]he existence of an advertisement by a retailer to sell an item at a stated price supports a reasonable inference a willing seller would sell the item and a willing buyer would purchase the item for the stated price.” It does not matter whether a specific seller “was actually willing to sell the item for the stated price or whether it valued the item at that price…[r]ather the advertised prices may be considered by the jury as circumstantial evidence of the price at which willing sellers and willing buyers would consummate a transaction in the marketplace.”

The Court then discussed the concurring opinion, where Justice Segal argued  that “evidence of a price listing, if not admitted for the truth that the seller is willing to sell the item at the listed price, cannot be used to prove fair market value because a price listing is not relevant to a determination of value if the retailer is not willing to sell the item at that price.” Again, the majority emphasized that such evidence circumstantially established “what value the marketplace places on the dumbbells.”

The majority next cited In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, which “utilized a similar hearsay framework in analyzing offers in the marketplace for the purpose of calculating a spouse’s ability to find employment.” There, the Court of Appeal concluded in affirming the reduction in child support that the family court ‘properly ruled the ads were admissible for the nonhearsay purpose of showing that offers to bargain existed,’ not for the hearsay purpose of showing whether the wife could secure a teaching position on the advertised terms.”

Finally, the majority disagreed with the concurring opinion’s argument that “offers to sell the dumbbells at specified prices were not hearsay because they were verbal acts ‘elemental to the formation of such an agreement’ for sale by a willing seller to a willing buyer.” It did “not see a reason to extend the verbal act doctrine, which applies to direct evidence of an element of an offense or cause of action (such as contract formation), to a case where the evidence is introduced as circumstantial evidence of an element of an offense.”

The Concurring Opinion

Justice Segal agreed with the majority’s conclusion regarding the admissibility of the retail prices of the dumbbells, but did not “agree with the way the majority [reached] that conclusion”:

“The majority states that ‘the existence of a retail advertised price (the nonhearsay purpose) is relevant to show the fair market value’ of the dumbbells, ‘regardless of whether the individual retailer is willing to sell at that price or believes its price reflects the value of the item (the hearsay purposes).’  (Id. at pp. 17-18.)  That last statement doesn’t sound right to me.  If an online retailer is not willing to sell the item at the advertised price or does not believe the advertised price reflects the item’s value, then the advertised price does not tend to prove or disprove anything about the fair market value of the item.”

…

“In other words, as I understand it, the majority supposes a jury may reasonably infer merely from the fact that retailers have listed prices on the internet that a willing buyer and a willing seller—having seen the prices, but having no knowledge (and thus, presumably, no belief) about whether the retailers would actually sell at those prices—would agree on a price comparable to the ones listed.  I don’t think that’s a reasonable inference.  Suppose, for example, the advertised prices are substantially lower than what the advertisers are in fact willing to sell for.  If we assume, as we must, our hypothetical willing seller knows this… there is no reason the hypothetical seller would agree to a comparable price.”

Instead, Justice Segal concluded that “the price listings introduced here…were offers to sell the dumbbells at the stated prices” because “they invited[] the performance of a specific act without further communication and leave nothing for negotiation.” Such communications were not hearsay because “oral and written statements of the negotiating parties were verbal acts establishing a legal relationship.” Accordingly, “these offers by actual retailers to sell the dumbbells at stated prices were circumstantial evidence of a hypothetical agreement—between a willing buyer and a willing seller—that would establish the highest price obtainable in the marketplace for the dumbbells.”

*Author’s Note: At Judge Trent Lewis and Justice Mark Simon’s excellent seminar on evidence in family law, Judge Lewis joked, “There are two kinds of lawyers when it comes to evidence: those that struggle with it, and those that don’t understand it at all.” We should all seek to be lawyers that struggle with it.

If I was teaching a law school class on evidence and wanted to introduce the hearsay rule to my students, this is the case I would start with. This case is not about hearsay exceptions. This case is about what is and what is not hearsay. Not only does it include a thorough explanation of what it is and what it is not, it includes a wonderful and enlightening dialogue between the majority opinion and the concurring opinion on the subject. Between these two dueling opinions, I believe one can really grasp the “analytically elusive” problems posed here.

Westmoreland v. Kindercare Education LLC
04/24/2023, CA 1/2: A164090
https://www.courts.ca.gov/opinions/documents/A164090.PDF

In this case, the Court of Appeal was asked to not follow prior precedent regarding the appealability of an order denying a renewed motion/motion for consideration under Code of Civil Procedure section 1008.

The Court of Appeal held that an order denying a renewed motion/motion for reconsideration under Code of Civil Procedure section 1008 is not an appealable order. It identified “three compelling reasons why a renewed motion is not an appealable order. The rule exists ‘to eliminate the possibilities that (1) a nonappealable order or judgment would be made appealable, (2) a party would have two appeals from the same decision, and (3) a party would obtain an unwarranted extension of time to appeal.’ ”