Family Law

Recent Family Law Cases

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FAMILY LAW (Through 1/20/2024)

By:  Andrew Botros, CFLS

The precise holdings in a given case are bolded. Auther’s note is italicized.

Dragones v. Calkins

01/17/24 CA 2/7: B329659

This case concerns an appeal from an attorney’s fees order under the Domestic Violence Prevention Act. The parties sought domestic violence restraining orders against each other in 2022. Dragones was granted the restraining order against Calkins and was later awarded attorney’s fees of $6,000. Calkins challenged this fee award. The Court of Appeal affirmed.

At issue was whether the January 1, 2023 amendment to Family Code section 6344 was retroactive where the restraining order was issued before January 1, 2023, but the attorneys fee was decided afterward. The amended version simplifies the process for a prevailing petitioner to obtain fees and makes it more difficult for a prevailing respondent to do so. The amended statute “obviates the need for a prevailing petitioner to show inability to afford attorney’s fees and eliminates the requirement to show a disparity in access to funds.”

The Court of Appeal held that the current version of section 6344 applies retroactively to all cases pending on its effective date, including the one on appeal. This conclusion was based on two premises.

First, Family Code section 4 sets forth a general presumption of retroactivity unless an exception applies. The court found no exceptions in Section 4 that would preclude the retroactive application of the new version of Section 6344. In particular, the Court of Appeal examined whether the following retroactivity exception in Section 4 applied:

“No person is liable for an action taken before the operative date that was proper at the time the action was taken, even though the action would be improper if taken on or after the operative date, and the person has no duty, as a result of the enactment of the new law, to take any step to alter the course of action or its consequences.”

The Court of Appeal concluded that “because Calkins’s liability for attorney’s fees does not arise from any action she took prior to 2023 that was ‘proper at the time the action was taken.’  Further,  “[h]er liability stems from her acts of domestic violence.  Both before and after the enactment of the current version of section 6344, Calkins was under a duty not to engage in acts of domestic violence.  The change in Section 6344 did not alter that duty.”

Next, the Court of Appeal found that applying the amended version of Section 6344 retroactively neither impaired any vested rights of Calkins nor violated due process, as it merely altered the criteria under which attorney’s fees could be awarded in the context of domestic violence restraining orders.

Finally, the Court of Appeal emphasized the procedural nature of the request. Drawing on established legal precedent, the court recognized that statutes modifying the standard for awarding attorney’s fees are procedural and apply to cases pending on their effective date. This principle is grounded in the understanding that such statutes do not create new obligations but rather change the procedures for existing ones. The court cited several cases, including Woodland Hills Residents Assn., Inc. v. City Council and USS-Posco Industries v. Case, to support the position that new attorney fee provisions apply to ongoing litigation, including cases pending in trial courts or on appeal at the effective date of the new statutes.

Garcia v. Tempur-Pedic North America, LLC

01/08/24 CA 4/2: E079859

In this case, the Court of Appeal affirmed the trial court’s decision to award costs to Tempur-Pedic, the prevailing party in a dismissed lawsuit. The Garcias, plaintiffs and appellants, contested the trial court’s award of costs related to depositions that were noticed but did not occur and costs related to service of process.

The Court of Appeal first referred to Code of Civil Procedure section 1033.5, which permits the recovery of costs for necessary depositions and service of process. Costs are considered allowable if they are “reasonably necessary to the conduct of the litigation” as opposed to merely convenient or beneficial. The Court of Appeal would only reverse upon finding an abuse of discretion. The necessity of discovery costs depends on the nature of the case, and in this instance, the deponents were necessary witnesses as they were medical professionals “who would know about the injuries to Vincent Garcia, a required element of the case.”

The Garcias argued that awarding costs for depositions that did not occur was per se improper. However, the Court of Appeal disagreed, stating that the determination should be based on whether the costs were reasonably necessary at the time they were incurred. The Court of Appeal emphasized that the costs incurred were common in discovery, such as fees for service of process and court reporter charges. These costs were deemed reasonable as they were incurred in an ongoing case without any indication that the case would terminate before the depositions. The court emphasized that the mere fact that the litigation ended before the depositions did not invalidate the necessity of those costs.

The Court of Appeal also addressed other specific costs contested by the Garcias.

Dr. McLarty’s Deposition: Tempur-Pedic incurred a fee for late cancellation after the Garcias’ counsel indicated the witness was unavailable. The court found this cost to be reasonably necessary and thus allowable.

Dr. Lane’s Nonappearance: Tempur-Pedic incurred costs for a certificate of nonappearance after Dr. Lane failed to show up for his deposition. The Garcias argued that Tempur-Pedic identified him as a nonretained expert witness and that fees of expert witnesses are not automatically recoverable. Tempur-Pedic, however, did not name him as an expert witness, but as a fact witness because he was a “treating physician . . . [who] learns of the plaintiff’s injuries and medical history because of the underlying physician-patient relationship” under Code of Civil Procedure section 2034(a)(2).

Costs for Service of Process: The Court of Appeal noted that Code of Civil Procedure section 1033.5 did not limit the award of costs of service only to completed depositions. It reasoned that the statute allows costs for “[s]ervice of process by a public officer, registered process server, or other means,” which does not specify the necessity of a deposition being completed. It reasoned these costs were incurred in a reasonable attempt to secure necessary testimony.

Service of Process Costs for Dr. Randall Tan: Although Dr. Tan had died before being served, Tempur-Pedic was unaware of his death. The court held that it was reasonable for Tempur-Pedic to incur costs for serving him as a necessary witness until they knew of the death.

In summary, the Court of Appeal’s decision was rooted in the principle that costs are recoverable if they were reasonably necessary at the time they were incurred, regardless of whether the deposition ultimately occurred or not. This understanding aligns with the broader legal context that costs in litigation are evaluated based on their necessity and reasonableness at the time of incurring them, rather than in hindsight.

Garner v. BNSF Railway Co.

01/04/24 CA 4/1: D082229

In this case, the appellant appealed from a judgment entered against him after the trial court granted BNSF Railway Company’s (BNSF) motions in limine to exclude his causation experts, which resulted in the dismissal of his wrongful death lawsuit before trial.  Appellant alleged “that during the more than four decades his father…spent working for BNSF, [the father] was continuously exposed to toxic levels of diesel exhaust and its chemical constituents.”  Per Gary, “this exposure was a cause of Melvin’s non-Hodgkin’s lymphoma, which…led to his death in 2014.”  Appellant contended, and the trial court agreed, that the trial court improperly excluded his experts and thus reversed.

Standard of Review

Since the trial court’s in limine rulings “resulted in the equivalent of a nonsuit,” the Court of Appeal conducted an independent review to determine if there was error.

Trial Court Gatekeeping Function

Under California law, trial courts serve as “gatekeepers” in the admission of expert testimony, guided by Evidence Code sections 801 and 802. These sections mandate the exclusion of speculative or irrelevant expert opinions and allow courts to scrutinize the basis for an expert’s opinion. The California Supreme Court in Sargon Enterprises, Inc. v. University of Southern California establishes that the trial court must exclude expert testimony that is (1) based on unreliable matter, (2) unsupported by the material upon which the expert relies, or (3) speculative.

Also relevant is the relaxed requirement for liability under the Federal Employers’ Liability Act (FELA), which only requires “that the plaintiff show the railroad’s negligence played any part, no matter how small, in the injury or death.”

Misinterpretation of the “Analytical Gap”

The Court of Appeal found that the trial court misinterpreted its gatekeeping function by excluding expert testimony due to the absence of direct studies linking diesel exhaust to non-Hodgkin’s lymphoma. This ruling was deemed an error because it’s not a prerequisite for causation experts to base their opinions on a direct study; rather, they can use their judgment and expertise to draw inferences from available data.

Dr. Salmon’s Approach to General Causation

Dr. Salmon, with extensive toxicological expertise, employed a well-accepted methodology to assess Melvin’s cancer risk due to diesel exposure. The Court of Appeal found Dr. Salmon’s method sound and noted that the trial court’s requirement for a direct study linking diesel exhaust to non-Hodgkin’s lymphoma was an unnecessary constraint not supported by law. The Court of Appeal clarified that experts do not need to pinpoint a specific dose-response relationship or rely on a study explicitly stating their conclusion. It highlighted that experts should be allowed to synthesize various pieces of scientific evidence to form a more comprehensive causal model.

Dr. Landolph and Dr. Gale’s Testimony

Both experts provided reasoned and scientifically supported opinions that diesel exhaust and its components could cause various types of cancer, including non-Hodgkin’s lymphoma. The Court of Appeal found that the trial court erred in excluding their testimony, as they were based on a reasoned analysis and synthesis of a wide range of scientific evidence. The Court of Appeal noted that reliance on regulatory data and epidemiological studies is valid in forming expert opinions, and the experts in this case did so appropriately.

The Role of the Jury

The court reaffirmed that it is the jury’s role, not the court’s, to evaluate the weight and persuasiveness of expert testimony. The jury is entrusted with the task of considering the evidence presented by the experts and determining its impact on the case.

In conclusion, the appellate court’s decision stresses that the gatekeeping role of the trial court should not obstruct the admission of expert testimony when it is based on sound scientific principles and methodologies, even if the underlying scientific data is not conclusive. It holds that such expert testimony should be presented to the jury, with the adversarial process being the appropriate forum for challenging the validity and reliability of the expert’s conclusions.

In re Marriage of Whitman

12/29/23 CA 1/2: A157055

In this partially published opinion, the Court of Appeal addressed the trial court’s characterization of various debts incurred as a result of Husband’s insider trading. This included a $935,000 civil penalty from the SEC and $295,000 in attorney fees related to that action, which the trial court characterized as a community obligation. This also included $9.4 million in attorney fees spent defending him against a criminal prosecution and a $250,000 criminal fine, which the trial court characterized as Husband’s separate obligation.

General Principles of Debt Characterization

The Court of Appeal provides an excellent summary of the background law on debt characterization.

Except as expressly provided by statute, under Family Code section 910, “the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.”

The Code further specifies when debts are “incurred”:

“[A] debt arising because of a contract is incurred when the contract is made (§ 903, subd. (a)); a debt arising from a tort is incurred ‘at the time the tort occurs’ (id., subd. (b)); and all other debts are incurred ‘at the time the obligation arises.’  (Id., subd. (c)). Under section 2620, ‘The debts for which the community estate is liable which are unpaid at the time of trial, or for which the community estate becomes liable after trial, shall be confirmed or divided as provided in this part.’  Further, section 2626 authorizes the trial court to ‘order reimbursement in cases it deems appropriate for debts paid after separation but before trial.’”

“Notwithstanding Sections 2620 to 2624, inclusive, all separate debts, including those debts incurred by a spouse during marriage and before the date of separation that were not incurred for the benefit of the community, shall be confirmed without offset to the spouse who incurred the debt.

Second, section 2627 provides in relevant part, ‘Notwithstanding Sections 2550 to 2552, inclusive, and Sections 2620 to 2624, inclusive, . . . liabilities subject to paragraph (2) of subdivision (b) of Section 1000 shall be assigned to the spouse whose act or omission provided the basis for the liability, without offset.’  Section 1000, subdivision (b)(2), addresses ‘the liability of a married person for death or injury to person or property’ that ‘is not based upon an act or omission which occurred while the married person was performing an activity for the benefit of the community.’  Under section 2627, then, liability for “death or injury to a person or property’ that resulted from an act or omission of one spouse is a separate debt if it was not based on an act or omission that occurred while performing an activity for the benefit of the community.”

Explaining these concepts further, the Court of Appeal wrote:

“Section 2625 broadly defines debts incurred during the marriage that were ‘not incurred for the benefit of the community’ as separate debts.  Section 2627 is narrower.  It addresses the liability of a married person ‘for death or injury to person or property’ and requires the liability to be assigned to the person whose act or omission provided the basis of the liability, without offset, if the liability is ‘not based upon an act or omission which occurred while the married person was performing an activity for the benefit of the community.’  (§ 1000, subd. (b)(2), italics added.)  Unless a debt or liability of a married person is ‘for death or injury to person or property’ within the meaning of sections 2627 and 1000, it is not governed by section 2627 and must be analyzed under the more general provisions of section 2625. Section 2623 thus requires the court to confirm any post-separation debts not incurred for the necessaries of that spouse or children of the marriage ‘without offset to the spouse who incurred the debt.’”

The $935,000 SEC Penalty and the $250,000 Fine

The analysis for the SEC Penalty was relatively simple. Since they were “neither contract nor tort debts,” they were, under section 903, incurred “at the time the obligation ar[ose].” Those “obligations arose when [Husband] became obligated to pay them, which happened after the parties separated when the criminal judgment was entered and the SEC settlement took place.” Since the trial court characterized the $935,000 fine as a community obligation, that determination was reversed.

Husband argued that the actions related to these debts were tortuous in nature and were therefore incurred during the marriage under section 903, as that is when the tort occurred. The Court of Appeal rejected this argument, writing that neither the SEC action nor the criminal action were tort claims. Further, the “criminal fine and civil penalties sought in those actions were not tort remedies; they were in no sense damages to compensate victims of a tort for injuries.  Instead, they were sanctions imposed to punish [Husband] and to deter him and others from engaging in the crimes for which he was convicted.”

In the alternative, Husband argued that ‘[t]o the extent the commission of a crime can be considered an “other case” under section 903[, subdivision] (c),’ he ‘became subject to’ the criminal fine and other punishment when he committed the crime and thus ‘the obligations flowing from those activities were incurred during [the] marriage.’” The Court of Appeal disagreed, holding that Husband  “became subject to those penalties when sentence was imposed in the criminal case and he settled the charges brought against him by the SEC.” This was because, “[u]nlike the statutory definitions of when a contract or tort debt is incurred, notably absent from the definition of when ‘other’ debts are incurred is any reference to the timing of the conduct that is the debt’s underlying source.” The Court of Appeal found this omission to be significant because “[u]nlike tort and contract damages, the responsibility for which arises when the tort or breach of contract occurs, imposition of regulatory and criminal fines is discretionary and it is not until that discretion is exercised that the legal liability to pay them arises.” Federal law also supported this interpretation. 

Attorney Fees Related to the SEC and Criminal Actions

Unlike the criminal and SEC fines, the Court of Appeal concluded that the attorney fees incurred related to those actions were contractual in nature and therefore incurred when the contract was made, which was during the parties’ marriage.  Therefore, they would be characterized as community debts as long as they were incurred for the benefit of the community.

Husband argued, and the Court of Appeal agreed, that his operation of a hedge fund “in general benefited the community.” Family Code section 2625, however, “presents a narrower question”: “The debts at issue were incurred not by [Husband’s] overall operation of the hedge fund throughout the course of the parties’ marriage.  Rather, they were incurred because [Husband] violated the securities law by conspiring to commit and committing multiple acts of insider trading. The question is whether the amounts [Husband] expended on attorney fees to defend himself in the criminal and SEC cases were incurred for the benefit of the community.”

Here, “the evidence reflects that the primary purposes for which Doug incurred the $9.7 million in fees were not to defend a community asset.” The Court of Appeal affirmed the trial court and held as follows:

We hold only that where, as here, one spouse, expends an extraordinary sum that is out of proportion to any community benefit for purposes that are predominantly for his or her separate benefit, nothing in Family Code section 2625 requires the court to order the other spouse to share equally in that burden.  Here, [Husband], incurred a huge debt to defend himself against criminal and civil enforcement actions in an effort to avoid being convicted of serious crimes, being subjected to criminal fines, civil penalties and a substantial prison sentence.  Those consequences, which he sought to avoid, werethe product of criminal acts he knew he had engaged in, and his expenditure of huge sums in an attempt to avoid the consequences served primarily to benefit him, not [Wife].  Whatever temporary benefit the community may have received from the crimes, the expenditure of more than ten times that amount for attorney fees cannot logically be attributed simply to avoiding repayment of the $935,000 in ill-gotten gains the community had received.  It allocated the lion’s share of the attorney fees, the $9.4 million [Husband] expended to defend himself in the criminal action, to [Husband] as his separate obligation.  It [properly] allocated a share of the fees expended on the SEC action to the community.”

In Re Marriage of Gilbert-Valencia and McEachen

Filed 12/29/23, CA 3: C091292 and C094849

In this case, the Court of Appeal primarily concluded that “remedies for breach of fiduciary duty by one spouse provided in Family Code section 1101 also apply to putative spouses, and that the ‘Documented evidence’ in section 4320 is a writing within the meaning of Evidence Code section 250.” It also agreed with Appellant Husband’s argument that the trial court “erred in…awarding 100 percent of the net proceeds from the sale of the parties’ quasi-marital property to [R]espondent” Wife.

As to the award of 100 percent of the net proceeds from the sale of the quasi-marital house, although the trial court concluded that Husband violated the ATROS and breached his fiduciary duty to wife, “it made no finding that husband’s breach or violation constituted oppression, fraud, or malice.” Family Code section 1101(h) only allows the award of 100% of a community asset to one party when there is clear and convincing evidence of fraud, malice, or oppression. Here, the trial court “erroneously believed it could award 100 percent of the quasi-marital property to wife without finding oppression, fraud, or malice.”

Husband next contended that the trial court “erred in excluding evidence of wife’s domestic violence, including a videotape and husband’s testimony” and further erred by “failing to consider husband’s request for domestic violence restraining order that was admitted into evidence.” Under Family Court section 4320, the trial court is required to consider “documented evidence of any history of domestic violence.” Here, the Court of Appeal concluded that any writing within the meaning of Evidence Code section 250 must be considered documented evidence of domestic violence, and that the video was such a writing. The trial court therefore erred in refusing to consider it.  Further, the “trial court also erred in failing to consider husband’s request for domestic violence restraining order, which was admitted into evidence with consent from wife’s counsel.”  This was because “nothing in the agreement prevented the trial court from considering the requests in determining spousal support.”  Despite admitting the restraining order request, the trial court did not consider it at all, which was also a failure to “consider the documented history of [W]ife’s violence against [H]usband.”

DEPENDENCY (current through 12/17/2023)

By:  John Nieman

The precise holdings in a given case are bolded.

In re K.B. et al.

11/30/23, CA 1/2 A167385

Mother appealed the trial court’s due-diligence finding of the search for relative placement options at Disposition as required by Welfare & Institutions Code (W&I) §358 & §309. The appellate court rejects the contention that mother forfeited her standing to appeal by failing to object to the findings. It reasons that the mandates of W&I §309 are not dependent upon parental cooperation. Ultimately it says that it would not be in the minor’s best interests to allow forfeiture to bar mother’s appeal. It also rejected a contention that substantial evidence supported the finding. It concluded that an inadequate search had been conducted and no written notice had been provided nor any substantive discourse with located relatives about the possibility of placement and support of the minor. Finally, for lack of a better description, the appellate court denied that it could find the error harmless with such a paucity of compliance with the mandates of W&I §309. Reversed and remanded only as to the due diligence finding.

In re N.R.

12/14/23, CA S274943

This case involves interpretation of W&I 300(b)(1)(D) which allows dependency jurisdiction to be based on the risk of physical harm from parental substance abuse. Questions are whether a formal medical diagnosis or the requisite DSM criteria is required for a court to conclude that a parent has a substance abuse problem that interferes with their ability to protect their child from an inordinate risk of physical harm and if not, what evidence is adequate to constitute a finding that a parent so suffers.

Regular Dependency practitioners will not be surprised to hear that the Court rejected the idea that a formal DSM diagnosis or meeting the DSM criteria of substance abuse is required to find parental substance abuse. The legislature did not so specify the definition, which it easily could have done, leaving the ordinary meaning of “substance abuse”. The Court essentially says that the term “substance abuse” doesn’t require a medical diagnosis nor is it so uncommon as to suggest that a technical definition is the only obvious interpretation of its meaning; that the law does not require a purely objective definition as provided in the DSM. Finally, the Court points out that the DSM itself claims to be a guide and also cautions against mechanical application of its criteria and use by those not trained in its use (i.e. it is only designed for use by medical and mental health professionals).

The Court also disagreed with the so-called “tender years” presumption, that any parental substance abuse presents a significant risk of physical harm to very young children. No such presumption, even if rebuttable, is part of the statutory scheme and reliance on such a presumption bypasses the statutorily required due process. This and the DSM reliance noted above are contrary to In re Drake M. (2012) 211 Cal.App.4th 754 (disapproved of on mootness in In re D.P. (2023) 14 Cal.5th 266) upon which the appellate court relied. Other cases that required medical diagnosis, DSM criteria, or the “tender years” presumption, were disapproved. Remanded to the appellate court for a sufficiency-of-the-evidence for jurisdiction analysis.

In re L.B.

12/28/23, CA 1/4 A167363

This is an Indian Child Welfare Act (ICWA) case. Mother appeals termination of his parental rights for failure to adequately inquire into her native American ancestry. This appellate court also sides with the In re Delila D., published7/21/23 [(CA 4/2: E080389) Reviewed here. Review was granted by the Supreme Court on 9/28, S281447], that issuance of a protective custody warrant vis Welfare and Institutions Code (W&I) §340 does not impact the depth of inquiry required by W&I §224.2. In this case, after mother indicated that she had possible Native American heritage and despite the ready availability of relatives, none were queried about possible native American Ancestry. Finding the initial inquiry inadequate (prior to termination of parental rights) the case is remanded conditionally to inquire adequately, comply with the ICWA (if found applicable), or (if ICWA inapplicable) reinstate the ICWA not applicable finding.

In re L.B. et al.

1/9/24, CA 5 F086109

Children appealed that the trial court should have considered bypass under Welfare & Institutions Code (W&I) §361.5(b)(13). That code section allows a court to decide that, if parents actively resisted engagement in substance abuse treatment and sobriety -as opposed to merely relapsing-, it may possibly bypass (not offer as is usually required) services to reunify when removal from parental custody is ordered at the dispositional hearing. Although significant facts were presented to the trial court to consider the question, the trial court opined that because the parents were actively engaged in drug treatment services at the time of the disposition hearing, that it could not consider the question. Implied here was that the trial court believed that the resistance required in the statute meant current or ongoing resistance. Although requested, the appellate court declined to make the bypass decision on appeal because evidence was not so incontrovertible as to allow such a ruling. Consequently, the case was remanded to the trial court to fully consider the facts related to the bypass question.

In re P.H.

1/12/24, CA 2/5 B321592

This is an Indian Child Welfare Act (ICWA) case. Father appeals jurisdictional and disposition orders that included a finding that there was no reason to know that the minor was in Indian child under the ICWA. Father filed an ICWA-020 at the detention hearing, indicating possible Yucca [Yaqui] and Navajo tribes of New Mexico. The social worker investigated, followed up with father and his mother, and found no evidence whatsoever to support father’s initial contention. The trial court found that there was insufficient evidence to make the ‘reason to know’ finding that would require that notice be sent [according to W&I §224.3(b)]. The appellate court agreed and affirmed.

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