Recent Family Law Cases

Jan F. v. Natalie F.
10/18/23 CA 2/1: B322439
https://www.courts.ca.gov/opinions/documents/B322439.PDF

In this case, the Court of Appeal reversed a denial of a restraining order request. Here, the trial court erred in concluding that Father’s multiple requests for police welfare checks were 1) not harassment and; 2) were protected by the First Amendment.

Of particular importance to this case was the trial court’s decision to deny the restraining order request after Mother’s testimony, but without seeking evidence or testimony from Father. In so doing, the trial court implied that even if it accepted all of Mother’s statements and evidence as true, she had not met the burden of demonstrating abuse by a preponderance of the evidence. This approach was error.

The Court of Appeal pointed out that if one were to accept Mother’s evidence at face value, without considering potential countervailing evidence, “her evidence would compel a finding in her favor.” Mother had presented evidence that Father had called the police multiple times in a short period, requesting unnecessary welfare checks, which she argued were intended to harass her and obtain her address. Moreover, she believed, and the evidence seemed to support, that Father was using the police department to exert control over her.

The Court of Appeal noted that since it did not hear from Father, there was no evidence in the record suggesting that he had a legitimate reason for contacting the police for welfare checks in several instances. The trial court did not explicitly find that Father had valid reasons to make these calls. Rather, it acknowledged that there could be consequences, including possible criminal consequences, for involving the police without a legitimate reason.

The Court of Appeals clarified that “the First Amendment does not guarantee the right to harassment of another.” Furthermore, it stated that restricting speech that is abusive under the DVPA does not “amount to a prohibited restraint of protected speech.” Thus, Father’s calls to the police without legitimate grounds for harassment did not enjoy First Amendment protection.

FCM Investments, LLC v. Grove Pham, LLC
10/17/23 CA 4/1: D080801
https://www.courts.ca.gov/opinions/documents/D080801.PDF

In this case, the Court of Appeal reversed an order confirming an arbitrator’s award on the grounds that the arbitrator’s credibility findings “rested on unacceptable misconceptions about English proficiency and language acquisition.” Accordingly and within the meaning of Code of Civil Procedure section 1286.2, the order should have been vacated because this misconduct substantially prejudiced the rights of a party.

The central issue revolved around whether Grove Pham breached a contractual agreement, thereby justifying the cancellation of an escrow. The arbitrator’s assessment of witness credibility was instrumental to her ultimate decision

Forfeiture

The Court of Appeal first addressed whether Grove Pham had forfeited the contention that the arbitrator was biased despite Grove Pham not raising this issue in the trial court. The Court of Appeal acknowledged that appellate courts typically refrain from considering procedural defects or erroneous rulings when objections could have been raised in the lower court.

The Court of Appeal then addressed the applicable exceptions to the forfeiture rule in this case: 1) When the question at hand is purely a matter of law and can be decided based on uncontroverted facts in the record, and; 2)  when matters involve the public interest or the due administration of justice.

The court concluded that both exceptions to the forfeiture rule applied to the Phams’ claim of arbitrator bias. It reiterated that the issue raised a pure question of law based on undisputed facts and implicated significant concerns involving the public interest and the due administration of justice.

Furthermore, the court asserted that even if the general forfeiture rule applied, it would exercise its discretion to address the claim due to the substantial interests at stake, ensuring that the integrity of the arbitration process and the principles of impartial adjudication were upheld.

Arbitrator Bias

The arbitrator’s adverse credibility determination against Grove Pham primarily centered on the use of an interpreter during the proceedings. The arbitrator’s characterization of this as a “ploy to appear less sophisticated than she really is” raised doubts about her impartiality. The court found this conclusion problematic, as it did not consider the broader context and factors that could influence language proficiency, business acumen, and the role of interpreters.

The Court of Appeal emphasized the need for sensitivity toward language difficulties in California, stating that “[s]ensitivity toward language difficulties is the hallmark of our multi-lingual state.” The Court further noted that roughly 40 percent of Californians speak non-English languages at home, with more than 200 languages and dialects in use and that nearly 20 percent of the state’s population, nearly 7 million individuals, grapple with English language limitations. The arbitrator’s decision did not reflect an understanding of this complexity.

The Court of Appeal concluded that such potential bias had substantially prejudiced the rights of the parties involved, warranting the vacation of the arbitration award. It also underscored the broader context of language access reforms in California’s justice system, emphasizing the importance of ensuring access to justice for individuals with limited English proficiency.

Author’s Note: I am including this case because the criteria for evaluating bias are practically identical for arbitrators and judges.

Vargas v. Gallizzi
10/13/23 CA 2/7: B317540
https://www.courts.ca.gov/opinions/documents/B317540.PDF

In this case, the Court of Appeal evaluated several trial court attorney fee and cost requests under Code of Civil Procedure section 2033.420

If a party denies a request for admission and the requesting party later proves its truth, Code of Civil Procedure section 2033.420 mandates that the court awards attorney fees according to proof to the party who made the request for admission. This code section expedites the trial by settling issues that do not need to be litigated further. The court may deny this award only if specific conditions are met, such as if the admission sought was of no substantial importance, the denying party had a reasonable ground to believe they would prevail, or if there was another good reason for the denial. The Court of Appeal emphasized that an award under Section 2033.420 is not a penalty but rather a reimbursement of reasonable expenses incurred in proving the truth of the requested admission.

In this case, Vargas and Garcia sought to recover expenses incurred in proving that medical records were business records. Gallizzi had denied the authenticity of these records. The trial court denied the request citing that the hearsay exception had not been proven “at trial,” but beforehand, and that afterwards Gallizzi had stipulated to the authenticity of the records.

The Court of Appeal, however, concluded that Section 2033.420 does not require the proof to occur “at trial” and that Vargas and Garcia had effectively proved the matter during pretrial proceedings. Furthermore, the Court of Appeal dismissed the notion that Gallizzi had stipulated to the business record designation, as her stipulation had pertained solely to the records’ authenticity.

The Court of Appeal emphasized that Gallizzi’s denial must be grounded in the evidence and not merely based on the hope of opposing counsel’s procedural error. In this case, Gallizzi’s denial seemed to rest on the expectation that Vargas and Garcia would make a procedural mistake, rather than a reasonable belief that she could prevail on the merits of the issue. Therefore, Vargas and Garcia were entitled to recover the reasonable expenses incurred in proving the medical records were business records.

Additionally, Vargas and Garcia requested admissions regarding specific healthcare visits and complaints of ailments. The Court of Appeal denied their motion for expenses on this matter because it found that Vargas and Garcia did not establish that each of the requested admissions had been proven at trial. However, the court noted that even if expenses had been awarded, they would largely overlap with the expenses awarded for the failure to admit the business records exception.

Finally, the Court of Appeal considered requests for admissions regarding causation. The Court of Appeal agreed with the trial court’s conclusion that it was unreasonable for Gallizzi to deny causing “some injury” to Garcia. Substantial evidence existed at the time of the requests to suggest that Gallizzi knew at least some injury had been caused by the accident. Although Garcia presented substantial evidence of her injuries at trial, it was mainly to establish the extent of her injuries, not the fact that some injury had occurred.

Parris J. v. Christopher U.
10/04/23 CA 2/4: B313470; B316247; B317613
https://www.courts.ca.gov/opinions/documents/B313470.PDF

In this case, the Court of Appeal affirmed in full the trial court’s issuance of a five-year restraining order under the DVPA, its order requiring the restrained party (“Christopher”) to change the beneficiary of an insurance policy on the life of the abused party (“Parris”) to a charity of her choosing, its denial of Christopher’s request for a statement of decision.

First, the Court of Appeal rejected Parris’ contention that “Christopher forfeited his arguments because he ‘fail[ed] to present material evidence fairly, and sometimes not at all.’” She cited the Ashby case, which deemed the appellant’s substantial evidence challenge forfeited because that appellant “set forth only favorable evidence, which if viewed in isolation may have compelled a different result but did not prove the [trial] court abused its discretion in renewing the DVRO.’”

While Christopher did omit some details, he did “adequately discuss the key events about which Parris testified at trial” and adequately summarized the trial court’s reasoning for its conclusions. Since Christopher did not “fail to cite and accurately present significant, material evidence supporting” the trial court’s order, the Court of Appeal addressed his contentions on the merits.

Whether a Party Disturbed Another’s Peace is not Subject to a Reasonable Person Standard

Christopher argued that the trial court erred in not applying a “reasonable person” standard when evaluating whether he disturbed Parris’ peace. In other words, he argued that the trial court needed to evaluate whether his conduct “would have objectively destroyed the mental or emotional calm of a reasonable person.”

The Court of Appeal rejected this argument, primarily relying on the plain language of the DVPA. Since the DVPA employs a reasonable person standard in some contexts, but not in this context, the “well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another” compelled the conclusion that a reasonable person standard should not apply in determining whether Parris’ peace was disturbed. 

Instead, the “relevant inquiry is simply whether the person against whom the DVRO is sought engaged in ‘conduct that, based on the totality of the circumstances, destroy[ed] the mental or emotional calm of the other party.’ (§ 6320, subd. (c).)”

Substantial Evidence Supported the Trial Court’s Findings

Next, Christopher contended the evidence does not establish he engaged in conduct rising to the level of abuse under the DVPA. The Court of Appeal disagreed, concluding:

“Christopher manipulated Parris into becoming financially dependent on him to keep her in the relationship and control her behavior. The evidence also demonstrates he controlled her behavior through emotional abuse. Specifically, it shows that whenever Parris did something Christopher disliked, he aggressively berated, insulted, and demeaned her, often using profanity and crude language to do so. Through this pattern of behavior, Christopher effectively, and unreasonably, coerced Parris into doing what he wanted without question to avoid further emotional abuse… Christopher repeatedly threatened her and her family, and followed through on several of his threats.”

The opinion then, over eleven single-spaced pages, describes Chrisopher’s abuse. Some examples include:

• Christopher demanded that Parris give him the text messages she exchanged with her roommate, and he threatened to get an attorney to obtain them from her.
• Parris moved into a studio apartment because Christopher pressured her to do so. He said he would help her out financially, but then did not do so.
• Christopher borrowed money from Parris and when she asked for repayment, he would berate her. He also ran up her credit cards.
• Christopher told Parris she needed to get a car. He told her to get a more luxurious car than she initially wanted after representing to her that he would help out with the rent. He never did.
• Within six months, Parris’ personal bank account was depleted. The amount in her “ ‘personal account was so low that [she] would have to ask [Christopher] to wire [her] funds just so [she] could go get gas.’ Parris testified Christopher ‘held [her] in that [financial] position up until . . . [they] got married.’”
• Christopher directed what Parris wore when they went out.
• When Christopher would get angry, he would scream at Parris, sometimes throwing her clothes around the room.
• Christopher became angry with her when she met a friend for lunch in Orange County without telling Christopher beforehand. Upon learning of her plans, Christopher sent Parris numerous text messages scolding and berating her for going to this lunch.
• Parris testified that when she received the completed application for a life insurance policy, she signed it quickly without reviewing it, as “Christopher was rushing [her] to sign it.” Based on Christopher’s representations, Parris believed the policy’s death benefit was $1 million, rather than $4 million. She testified she would not have signed the policy application had she known the death benefit was $4 million.
• In June of 2019, Parris did not answer a FaceTime call from Christopher because she was on the phone with a friend. He then berated her and cancelled their plans to go to Las Vegas.
• Fed up, Parris called Christopher a “lying, cheating, egotistical, narcissistic, asshole.” Christopher responded: “[You] f[*]cking white trash piece of sh[*]t.” He then repeatedly cursed at her, called her several other names, and threatened her multiple times. He stated he “will burn [and] donate all that [he] gave [her,]” that she “will know what an [*]sshole is capable of[,]” and that he “will make [her] hate[ ] [him]” because he will “show her what [*]ssholes do[.]” Parris begged him to stop, and stated she felt scared and sick. That same day, he sent her an e-mail stating: “I will show no remorse and cut through [you] like . . . hot butter through [a] knife[,] [you] have no f[*]cking idea, who the f[*]ck do you think you [are] talking to????”
• Once the parties separated, he threatened her with “tsunami of lawsuits” and told her she would “know the meaning of suffering,” she “w[ould] find out soon enough if [she was] not careful how [he] dispatch[es] [his] enemies in court,” she would be “put…in unimaginable financial strain,” and that she would be put “in a financial crisis like [she has] never seen [before], one that will take [her] [d]ecades to clean up[.]”
• On November 2019, Parris applied for, and received, a TRO in her favor. The next month, “Christopher sued Parris’s father for attempted civil extortion, intentional infliction of emotional distress, and negligent infliction of emotional distress.”
• In June of 2020, Christopher sent letters to Parris’ employer, instructing them to “conduct a proper background check on Parris before hiring her, as ‘she has her moral compass upside down, [and is] not the kind of employee you want anywhere near your organization.’” In these letters, Christopher attached his April 2020 TRO against Parris, “claiming he got the TRO because Parris was harassing him online and stalking him and his current girlfriend on social media.”

The Life Insurance Policy

The Court of Appeal next addressed the trial court’s order requiring Christopher to change the beneficiary of the life insurance policy from Parris to a charity of her choosing.

First, the trial court found that “Christopher’s maintenance of the Life Insurance Policy disturbed Parris’s peace.” Based on the conduct discussed in the bullet points above, “the trial court could reasonably find Parris was afraid of Christopher” and could also find “Parris’s discovery of the Life Insurance Policy’s $4 million death benefit increased her fear because she learned Christopher had a significant financial incentive to kill her, and that she feared for her safety as a result.”

Christopher also argued that “the trial court lacked the authority to order him to change the beneficiary of the Life Insurance Policy.”  The Court of Appeal disagreed, noting that the DVPA authorizes a trial court to issue “a panoply of remedial orders” to “prevent acts of domestic violence.”

To wit, the DVPA authorizes orders enjoining a party from disturbing the peace of the other party and further enjoins a party from specified behavior that the court determines is necessary to effectuate its orders. “By directing Christopher to change the beneficiary on the Life Insurance Policy from himself to a charity of Parris’s choosing, the trial court restricted him from maintaining an insurance policy on Parris’s life on terms giving him a significant financial incentive to kill Parris. In so doing, the court appropriately fashioned a remedial order tailored to Parris’s needs based on the facts of this case, and enjoined Christopher from engaging in the specific conduct that it had found to constitute an ongoing disturbance of Parris’s peace.”

Statement of Decision

First, Christopher’s request for a statement of decision was improperly pled. He did not merely ask the trial court to explain the factual and legal basis for the DVRO as set forth by code. Instead, his first request asked the trial court to respond to 15 different statements relating to the Life Insurance Policy. His second request asked the trial court to respond to 66 separate questions, many of which contain additional follow-up questions, relating to a sprawling number of issues and topics. Accordingly, Christopher’s requests inappropriately “s[ought] an inquisition, a rehearing of the evidence.”

Second, Christopher did not demonstrate he was prejudiced by the trial court’s failure to issue a written statement of decision.

Hansen v. Volkov
Certified for Publication on 10/04/23; Filed on 9/18/23: CA 2/7: B311524
https://www.courts.ca.gov/opinions/documents/B311524.PDF

In this case, the Court of Appeal reversed a trial court’s issuance of a three-year restraining order protecting one attorney (“Hansen”) in a family law proceeding from her opposing counsel (“Volkov”).

The acrimony between counsel culminated in a row at a deposition that was supposedly canceled, but where Volkov showed up anyway.

Governing Law and Standard of Review

California’s Code of Civil Procedure Section 527.6 provides the legal framework for granting temporary restraining orders against harassment. Harassment is defined as either violence, credible threats of violence, or a pattern of behavior that seriously alarms or annoys someone without a legitimate purpose. For behavior to qualify as a “course of conduct,” it must form a series of acts over a time period, however short, which reveals a continuous purpose. Such behavior must lead a reasonable person to suffer “substantial emotional distress” and actually cause such distress to the petitioner. Constitutionally protected activities, however, do not come under “course of conduct.”

The court during a harassment hearing is mandated to receive all relevant testimony and may conduct its independent inquiry. A restraining order can only be issued if there is clear and convincing evidence that harassment is likely to recur.

Evidence Sufficiency and Appellate Review

Notably, when an appellate court examines the sufficiency of the evidence under a clear and convincing evidence burden of proof, the appellate standard of review is less deferential than the substantial evidence standard. A reviewing court must evaluate whether the evidence “was insufficient for a reasonable trier of fact to make the findings necessary to support the restraining order with the high probability demanded by the clear and convincing standard of proof. “

Volkov’s Emails and Constitutional Protection

The trial court found Volkov’s emails to be “argumentative and self-serving” but they did not contain threats of violence. Therefore, the emails were constitutionally protected activities related to litigation and could not form part of a “course of conduct” that would qualify as harassment under Section 527.6.

Insufficient Evidence for Emotional Distress

The trial court’s findings that Volkov willfully alarmed or annoyed Hansen were supported only by an isolated incident at Hansen’s office and Volkov’s pre-deposition emails. While the incident was unsettling for Hansen and caused her to essentially get a stomach ache, it did not meet the high bar of causing “substantial emotional distress” as demanded by Section 527.6. Further, since there needed to be a course of conduct i.e. more than one incident and the e-mails could not be part of that course of conduct because they were protected speech, this left the court with a single incident (what happened at the deposition). This could not, as a matter of law, equate to a course of conduct.

Civility Concerns

Although the restraining order was reversed, the Court of Appeal commented on the lack of civility between both parties. The Court of Appeal not so subtlety endorsed the California Civility Task Force’s recommendation for mandatory continuing legal education devoted to civility.

Nash v. Apnea
10/03/2023 CA 2/7: B322796
https://www.courts.ca.gov/opinions/documents/B322796.PDF

This case revolves around the interpretation of Civil Procedure Section 685.040, which can allow the recovery of attorney’s fees as a part of the costs of enforcing a judgment.

The Court of Appeal noted that there are two conditions that must be met for attorneys’ fees to be considered as “enforcement costs” under CCP section 685.040:

1. The fees must have been incurred to “enforce” a judgment.
2. The underlying judgment must have included an award for attorneys’ fees as outlined in Section 1033.5, subdivision (a)(10)(A), which allows for attorneys’ fees when authorized by a contract.

Here, the appellant contended that the original lease limited attorneys’ fees to $1,000, and therefore this limit should apply to the enforcement costs. The court rejected this argument, saying that once a judgment is rendered, the specific limitations of the contract no longer apply because the contract was merged into the judgment. The doctrine of merger provides that upon the entry of a judgment, all further contractual rights are extinguished and are instead governed by the rights provided by the judgment. In other words, any post-judgment rights were based on the judgment and not any rights arising from the initial contract. The mere fact that the original contract provided for any attorney fee award at all, meant that any reasonable enforcement fees were collectible under Section 685.040.

Author’s Note:   I believe it is an open question as to whether Code of Civil Procedure section 685.040 applies to family law proceedings, but my gut tells me it would apply because 1) It is well settled that prevailing party fees in family law agreements are enforceable to the extent they do not involve child custody or child support and; 2) Code of Civil Procedure section 685.040 does not conflict with Family Code section 3557’s need and ability based scheme for the award of attorney fees related to enforcement because section 3557 does not involve fees awarded pursuant to contract.

In re Marriage of Rangell
09/28/2023 CA 2/8: B313786
https://www.courts.ca.gov/opinions/documents/B313786.PDF

In Husband’s appeal of sanctions imposed under section 271, Husband made four main arguments, all of which were rejected.

Preliminary, the Court of Appeal noted that the standard of review was abuse of discretion and that the trial court’s factual findings merely had to be supported by substantial evidence.

Husband first contended that he had been generally compliant and cooperative. The Court of Appeal disagreed, stating that “the record [was] replete with instances that display [Husband’s] lack of cooperation and willingness to comply with court orders.” It specifically noted Husband’s failure to list a jointly-owned property in Oklahoma for sale and to account for rental income, noting, “[Husband’s] disregard for the court’s orders regarding the Oklahoma property is not indicative of a party acting in good faith.”

Next, Husband claimed the trial court itself contributed to delays. The Court of Appeal again disagreed, noting, “The delay in entering the final judgment has no bearing on [Husband’s] obligation to comply with existing court orders” even if they had been pronounced, but not yet formally entered. In any event,  the Court of Appeal stressed that Husband’s non-compliance was ongoing, irrespective of any delays from the court.

Third, Husband criticized the sanctions as being “indefinite” and potentially devastating at “$1,000 per day,” a novel type of sanction not addressed in any prior published cases. The Court of Appeal held such an order was in the trial court’s discretion, noting that the “sanctions were designed to be conditional. They are within [Husband’s] power to cease.” All Husband had to do to stop the accrual of sanctions was simply comply with court orders.

Finally, Husband argued that his financial circumstances had not been considered when imposing the sanctions and attorney fees. The Court of Appeal again disagreed. It first noted that the agreement was never raised in the trial court. It then pointed to Husband’s own financial records, noting, that he “had sufficient assets, primarily from the rental income and the eventual sale of the Oklahoma property, to meet his obligations.”

In re Marriage of Simonis
09/26/23 CA 3: C095193
https://www.courts.ca.gov/opinions/documents/C095193.PDF

In this case, Husband argued that the trial court applied tracing law too rigorously. Each of his arguments were rejected.

Husband argued the right to detailed accounting for community versus separate property should be relaxed after the separation of the spouses. The Court of Appeal rejected this argument. It stated that “a spouse’s equal interest in a community estate—and in the income and proceeds obtained from the use of assets in the community estate—does not vanish at the date of separation.”

Husband then cited previous case law, particularly See v. See and In re Marriage of Smith, to argue that certain presumptions should no longer be applied after the date of separation. However, the Court of Appeal noted that those cases had nothing to do with “how a spouse would need to trace their separate property interests in commingled funds to prove the amount of reimbursement to which they were entitled.”

Husband also expressed concerns about the equal division of assets, asserting that a failure to provide reimbursement after not meeting the tracing burden would conflict with the trial court’s obligation to divide assets equally. The Court of Appeal disagreed, invoking In re Marriage of Ramsey & Holmes to establish that the separitizer has historically bore the burden of tracing when it comes to commingled assets.

Husband then invoked Section 2626, which he claimed gave the court “broad discretion” to order reimbursement for debts paid after separation but before trial, the court found this argument to be unsupported by the actual statute in this context. The court emphasized that the “words ‘broad discretion’ do not appear in this unambiguous declaration of a court’s jurisdiction to order reimbursement.”

Finally, Husband argued that there was a lack of case law to guide the application of the “family expense presumption” in debts accrued post-separation. This was also rejected by the court. It stated, “Together, these cases support a conclusion that the detailed tracing analyses required of commingled funds should also be applied to the expenditure of commingled funds postseparation.”