Recent Family Law Cases

Michael M. v. Robin J.
05/09/23, Certified for Publication on 06/02/2023 CA 4/1: D080707
https://www.courts.ca.gov/opinions/documents/D080707.PDF

In this case, the Court of Appeal reversed and remanded the trial court’s denial of a restraining order renewal request under the DVPA.

The COA first noted that though it “generally reviewed[] an order denying a request to renew a DVRO for abuse of discretion,” the “question whether the trial court applied the correct legal standard in exercising its discretion is a question of law requiring de novo review.” It stated further that “[i]f the court’s decision to deny a renewal request is influenced by an erroneous understanding of the law, the court has not properly exercised its discretion under the law.”

The COA then set forth the applicable legal standard: “The legal standard for renewal of a DVRO is whether the protected party entertains a reasonable apprehension of future abuse” which “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 genuine and reasonable.”

In this case, the Court concluded that the “trial court’s ruling was prejudicially influenced by a misunderstanding of the law in several respects.”

First “and foremost,” the trial court erred by requiring a showing of recent abuse or a recent violation of the DVRO. Its “mistaken insistence on evidence of recent abuse caused it to give no apparent consideration to” either the abuse preceding the original DVRO or abuse that occurred subsequent to the issuance of the order. In particular, the trial court should have “considered[] the evidence and findings on which the initial DVRO was based,” as the “underlying findings and facts supporting that order will often be enough in themselves to provide the necessary proof” to issue a renewal.

Second, the trial court erred by “‘exercising [its] discretion to find’” that a text message which accused Robin “of being ‘corrupt’ and ‘sick’” was not “‘really…a violation [of the order].’” Since that message “did not relate to court-ordered visitation and it was [a] nonemergency communication,” it “was a clear violation of the DVRO.” A “knowing violation of a DVRO cannot be characterized as a de minimis and technical violation.”

Finally, the trial court committed reversible error “by inferring a retaliatory motive from the mere timing of Robin’s renewal request—and rejecting her claim of genuine fear on that basis alone.” This was because the “DVRO statute required Robin to file her renewal request within three months before the DVRO’s expiration” in any event. Even it were retaliatory, the “mere existence of a retaliatory motive still would not negative the compelling evidence that Robin had a reasonable basis to fear Michael,” as “[a]nger and fear are not mutually exclusive; they often go hand in hand.”

The COA next considered the appropriate remedy: should it remand for a new hearing on the renewal request, or, after concluding that the record demonstrates that a reasonable apprehension of future abuse existed as a matter of law, should it order the trial court to renew the restraining order?

The COA concluded that it should order the renewal of the restraining order after it examined the relevant factors. These factors include: 1) the underlying findings and facts supporting the original DVRO order; 2) any significant changes in circumstances “surrounding the events justifying the initial protective order” and; 3) the “seriousness and degree of risk, such as whether it involves potential physical abuse, and the burdens the protective order imposes on the restrained person, such as interference with job opportunities.”

Garcia v. Superior Court
05/30/23, CA 4/2: E080436
https://www.courts.ca.gov/opinions/documents/E080436.PDF

In this case, the COA affirmed the trial court’s denial of a peremptory challenge request under Code of Civil Procedure section 170.6. It held that the request was properly denied because a “peremptory challenge may not be made when the subsequent proceeding is a continuation of an earlier action.” A peremptory challenge is a “continuation of an earlier action” when it “involves matters necessarily relevant and material to the issues involved in the original action…” This continuation rule exists “to prevent forum shopping.” It noted that even though a subsequent proceeding may include different parties, “it does not matter that the parties ‘are not exactly the same as those who participated in the previous proceedings, [as long as] the interested parties are the same…” Finally, the COA noted that “a second proceeding” can be a ”continuation of a first, even though the first had not yet concluded.”

Attorney Note: There are few situations in family law where a different action between the same parties would not involve “matters necessarily relevant and material to the issues involved in the original action.” Even a dissolution action filed separately from a DVPA action would almost surely be considered a continuation, as domestic violence is relevant to spousal support, attorney fees, and child custody. If a party is joined to the family law case, however, that party would typically be permitted to challenge the judge. (SeeThe Home Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1033.)

Victor Valley Union High School District v. Superior Court
05/24/23, CA 4/2: E078673
https://www.courts.ca.gov/opinions/documents/E078673A.PDF

This case involved the interpretation of the safe-harbor provision of Code of Civil Procedure section 2023.030(f), which states in relevant part that “absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system…This subdivision shall not be construed to alter any obligation to preserve discoverable information.”

When the Duty to Preserve ESI arises

The statute “does not define when a party is under such an obligation to preserve information…” The relevant legislative history provides that a party has a duty to preserve evidence “because of pending or reasonably anticipated litigation” but does not answer what constitutes “reasonably anticipated litigation.”

After noting that California case law did not answer the question either, the COA turned to persuasive federal case law. The COA concluded that “the safe-harbor provision of section 2023.030(f) does not apply when ESI was altered or destroyed when the party in possession and/or control of the information was under a duty to preserve the evidence because the party was objectively aware the ESI would be relevant to anticipated future litigation, meaning the litigation was ‘reasonably foreseeable.’” In turn, “[l]itigation is reasonably foreseeable when it is ‘probable’ or ‘likely’ to arise from a dispute or incident…but not when there is no more than the ‘mere existence of a potential claim or the distant possibility of litigation.” The COA further noted that “the ‘reasonable foreseeability’ standard does not require that the future litigation be imminent or probable without significant contingencies, or even certain.”

It also noted that “[w]hen a lawyer who has been retained to handle a matter learns that litigation is probable or has been commenced, the lawyer should inform the client of its duty to preserve potentially relevant documents…”

Reversal of the “Draconian” Sanctions Order

The trial court ruled the destruction of evidence in this case was not intentional, but only negligent. It denied the request for terminating sanctions, but imposed “issue and evidentiary sanctions…that essentially precluded the district from defending against the negligence cause of action.” It also imposed “monetary sanctions in the amount of $4,260.”

The COA noted, however, that under “California law an adverse evidentiary presumption, as a sanction for failure to comply with a statutory or regulatory duty to preserve evidence, is only appropriate if the trier of fact concludes the evidence was intentionally destroyed.” Since a “discovery order, though not in the form of a default or dismissal, is justifiably treated as such where the effect of the order is to preclude proof of essential elements of each cause of action” and since a trial court abuses its discretion when a “sanctions order deprives a party ‘of any right to defend the action upon its merits’” except for “cases of extreme misconduct and when other viable options are unavailable,” the COA concluded that the trial court abused its discretion in awarding sanctions that were essentially terminating sanctions when it did not “appear to have considered whether the sanctions it imposed were the only ones available that would effectively remedy the loss” of the destroyed evidence.

The COA remanded the matter to the trial court to “reconsider whether the draconian sanctions it imposed are warranted under the facts and circumstances of this case.” It, however, “expressed[] no opinion about what sanction or sanctions would be appropriate.” In fact, the trial court was permitted to reissue the same sanctions if it found that no lesser sanction was appropriate.

Attorney Note: Beyond establishing with some certainty when the duty to preserve ESI arises, this case is also a stark reminder of the importance of issuing an ESI letter to your clients in every case. If you do not have one already prepared, e-mail me at andrew@bickfordlaw.com and I will send you a sample.