Family Law

Recent Family Law Cases

FAMILY LAW (Through 2/20/2024)

By:  Andrew Botros, CFLS

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

In Re Marriage of Tara and Robert D.

In Re Marriage of Tara and Robert D.
02/16/24 CA 4/1: D080977 – J. Dato

Author’s Note: I represented Appellant Father on appeal.

In this case, the Court of Appeal held that the trial court abused its discretion in denying Father’s request for a continuance. However, because Father could not establish prejudice, the Court of Appeal affirmed the trial court’s order. On appeal, Respondent Mother did not file a brief, but the children did through minors’ counsel.


The underlying order resulted from a multi-day evidentiary hearing on the question of custody and visitation, including legal custody which was ultimately awarded to Mother. One week before the evidentiary hearing was to begin, Father’s counsel filed a motion to be relieved claiming there had been a breakdown in the attorney-client relationship. 

At the hearing on counsel’s motion, the court “said its tentative decision was to deny the motion ‘at this late stage’ because counsel is ‘not allowed to prejudice [his] client.’”  The trial court noted that it had previously made it “clear to everyone” that the hearing would not be continued.

Father said he had “reach[ed] out to alternate counsel” as an “act of desperation.” He did not, however, “confirm that he had retained new counsel” and “indicated that if counsel withdrew, he would be left to proceed unrepresented.”

The trial court allowed counsel to withdraw, stating that counsel “‘can’t conduct a trial when fundamentally there is a difference between you and him — or from his perspective and his client about how to proceed and what the end goal is.’”

Father’s “now-former lawyer explained that he had not filed a trial brief or exhibit list because there was ‘a fundamental difference of opinion of what should be filed.’” The trial court postponed the trial for one day to allow Father to prepare.

Preparation of Underlying Order on Appeal

The Court of Appeal noted that Father’s withdrawn counsel never prepared a formal order. “Instead, [Father’s] appellate counsel prepared” that order. Although the Court of Appeal “ordinarily does[] not consider orders entered after the notice of appeal is filed, the order here formally memorializes the ruling that is the subject of the appeal and allows the appeal to proceed.”

Author’s Note:  This was in a footnote but is a very important holding. The order denying the continuance was not an appealable order because it was preliminary to the FOAH. The appeal was taken from that FOAH. What this case says is that if you are challenging a non-appealable, interlocutory order through an appeal of a judgment (or later appealable order if you are postjudgment) and the trial court ordered the formal preparation of that non-appealable, interlocutory order, the appeal cannot proceed if that formal order is not entered.

Let me give a clearer example. Let’s say you want to challenge the denial of a motion to compel. That is not an appealable order, but can be challenged by appeal from the subsequent judgment. If the trial court ordered the preparation of a FOAH for that motion to compel denial, and none was prepared, the Court of Appeal would likely dismiss the appeal.

We suspected as much. It was an elaborate song and dance to prepare limited scope representation, prepare a FOAH, and go ex parte to get that FOAH entered, but it was necessary.

Father Preserved His Right to Appeal

The Court of Appeal rejected minors’ counsel argument that the Court of Appeal “should affirm because [Father] failed to file a ‘noticed motion or formal ex parte application’ as required by Rule 3.1332(b).” Father had requested a continuance in a written declaration in opposition to counsel’s withdrawal motion. Since the trial court “addressed that request on the merits and said it would not grant any continuances” and since “the law does not require a futile act,” Father “[r]epackaging the same request as a noticed motion would have been pointless in light of the court’s clear statements.”

Further, although self-representation was not a ground for leniency, trial judges must nevertheless acknowledge that self-represented litigants “often do not have an attorney’s level of knowledge about the legal system and are more prone to misunderstanding the court’s requirements.” Under these circumstances, “[Father], proceeding without counsel against his wishes, would have reasonably understood that his motion for a continuance had been denied on the merits.” It would have been “perverse to penalize him for failing to formally renew a request that he knew had already been rejected.”

The Denial of the Continuance Request Was an Abuse of Discretion

The Court of Appeal agreed with Father that “when it permits the withdrawal of counsel on the eve of trial, the court has a special obligation to assess the length of a continuance that would be required for the affected party to obtain a new lawyer and balance that against other pertinent circumstances that would be adversely affected by a delay in the proceedings.” But here, “the trial court never inquired about the length of the continuance that was being sought or might be required, making it impossible to perform the required balancing analysis.  Instead, it simply declared there would be no continuance and then (commendably) attempted to explain what it could do to accommodate the now-self-represented family law litigant.” It’s failure to “inquire and assess” constituted the abuse of discretion here.

The Court of Appeal noted that Rule 3.1332(c) requires the trial court to address “The unavailability of trial counsel because of death, illness, or other excusable circumstances” as well as “the proximity of the trial date…whether there was any previous continuance, extension of time, or delay of trial due to any party…the length of the continuance requested…the availability of alternative means to address the problem that gave rise to the motion or application for a continuance…the prejudice that parties or witnesses will suffer as a result of the continuance if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay…the court’s calendar and the impact of granting a continuance on other pending trials…whether trial counsel is engaged in another trial…whether all parties have stipulated to a continuance…whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance…and “[a]ny other fact or circumstance relevant to the fair determination of the motion or application.” 

The Court of Appeal noted further that “[l]osing counsel shortly before trial often constitutes good cause for a continuance,” but “[n]onetheless, after deciding to permit counsel to withdraw, the court explained that it would not grant a continuance primarily because it had previously told the parties the trial would not be continued.” But “the appropriate exercise of judicial discretion requires the judge to reexamine tentative conclusions in light of changed circumstances.” The decision to permit the withdrawal of counsel on the eve of the hearing was “nothing if not a changed circumstance.” The trial court “could not merely rely on its prior statements, but was instead required to revisit the reasons those statements to determine whether they still applied in light of the changed circumstance.” Specifically, the Court noted “although [Father] suggested that he had already made efforts to retain new counsel, the court did not ask whether that attorney had agreed to take the case or how long it would take the new attorney to prepare for trial.  Without making this fundamental inquiry, the court lacked the information necessary to balance the competing interests at stake” and thus “failed to properly exercise its broad discretion.”

Specifically, the Court of Appeal did not hold that “the trial court was obligated to grant a continuance, or that a continuance of some particular length was required.”  The problem here was that the court failed “to conduct the necessary inquiry.” It noted further there was “no question that the goal of promptly resolving custody disputes deserves significant weight,” but that did not excuse the trial court’s failure to balance the necessary factors.

The Court of Appeal also rejected minor’s counsel’s argument that the Court of Appeal could affirm merely because “factors in the record could have supported a decision to deny a continuance.” Per the Court of Appeal, “that [was] precisely the problem.” Since the record reflected that 1) The trial court did not properly apply the law and; 2) the trial court did not make the necessary and critical inquiries, the Court of Appeal could not “know whether denial of the continuance in this case was proper.”

The Error was not Prejudicial

The Court of Appeal rejected Father’s argument that the failure to grant a continuance in this case was inherently prejudicial i.e. structural error. Father principally relied on Vann v. Shilleh (1975) 54 Cal.App.3d 192for the contention that the failure to deny a continuance under these circumstances required “automatic reversal.”

The Court of Appeal referred to the Christopher L. California Supreme Court Case, which “adopts and applies a framework for assessing whether an error is structural.” Christopher L. was a dependency case.

The first factor evaluates whether “the right at issue is not designed to protect the defendant from erroneous conviction but instead protects some other interest.” In custody cases, the court must consider all the circumstances bearing on the best interests of the minor child and thus “benefits from the presence of counsel to ensure it ‘has the fullest picture of the relevant facts.’” Further, this is “not easily distinguished from the parent’s own interest.”

The second factor evaluates whether the case “invariably requires a speculative inquiry into what might have occurred in an alternative universe,” which did not apply to a denial of a continuance.

Author’s Note:  The Court did not give a specific example, but Marriage of Knox would have been a good one. (See In re Marriage of Knox (2022) 83 Cal.App.5th 15, 41 [Holding that if Wife had been represented by counsel, it would have been “reasonably probable” that a grant deed proving Wife’s claim of transmutation would have been admitted into evidence.].)

The third factor looks to whether these errors always result in fundamental unfairness. The Court of Appeal could not conclude that they did. As in Christopher L., Father was only unable to retain counsel for trial, not all proceedings. And given that the trial took place “over nonconsecutive days over the course of several months,” the Court of Appeal could “not assume that the trial court’s refusal to grant a continuance deprived [Father] of counsel for the entirety of the trial.”

Author’s Note:  My comment at oral argument that no reasonable family lawyer would jump in the middle of an eight-day trial, apparently, did not convince anyone on the panel.

Finally, the Court of Appeal noted that, as in Christopher L., there were grounds to request consideration at a later date. Like the parents in Christopher L., Father was not barred from modifying custody later.

Author’s Note:  We did argue that Father would have had a high burden to modify custody under the changed circumstances rule. On the other hand, the burden to modify a juvenile court disposition is just as difficult.

After concluding that structural error did not occur warranting automatic reversal, the Court of Appeal, after closely reviewing the record, concluded that Father did not meet his burden to establish that he would have achieved a more favorable result in the absence of the error, under People v. Watson.

Father did not make any representation regarding the availability of another lawyer had the Court granted him a continuance, but merely assumed he could have obtained alternate counsel. This was problematic given that his declaration stated that he had already contacted a specific attorney. Further, Robert did not seek to substitute counsel even though the proceedings continued over several months.

Assuming competent counsel was available to try the case, Father’s contentions were suggestive of disadvantage, but disadvantage is not tangible prejudice. Accordingly, affirmance was required.

In re Marriage of Lietz

In re Marriage of Lietz
02/8/24 CA 4/3: G061866 – J. Sanchez

In this case, the Court of Appeal affirmed the trial court’s orders excluding evidence and affirmed the appellant’s denial (by operation of law) of a motion for a new trial.

Wife attempted to establish that the lot size of the community residence was larger than 9,000 feet, which was the figure adopted by both appraisers in their reports. Those reports were admitted into evidence by stipulation. To show the lot size exceeded 9,000 feet, Wife introduced testimony from her expert, Burke. The trial court forbade Wife from introducing that evidence through this expert under People v. Sanchez (2016) 63 Cal.4th 665. Per Sanchez, “an expert may not relate case-specific facts asserted in hearsay statements unless they are independently proven by competent evidence or are covered by a hearsay exception.” Since the evidence regarding the size of the lot was case-specific, the expert’s attempt to relay that evidence to the factfinder was inadmissible hearsay.

After the trial, the Wife filed a motion for a new trial so she could introduce the missing evidence regarding the lot size. The motion for trial was not ruled upon within the statutory deadline, and was thus denied by operation of law. The Court of Appeal held that Wife did not clearly establish that she was also challenging the denial of the new trial motion: the issues presented, argument headings, legal authorities, and arguments made in her appellate briefs concerned the evidentiary hearings made at trial. Accordingly, the denial of the new trial motion was not disturbed.

M.A. v. B.F.

M.A. v. B.F.
2/5/2024 CA 4/3: G061598 – J. Gooding, dissent by J. Sanchez

In this case, the Court of Appeal affirmed the trial court’s conclusion that a  “friends with benefits” type dating relationship did not exist between the parties within the meaning of Family Code section 6210.

It did not conclude that such a relationship “is necessarily a dating relationship or that it can never be one,” but rather that on this particular record, “substantial evidence supports the trial court’s finding that the relationship between plaintiff M.A. and defendant B.F. was not a dating relationship.”

In May 2020, M.A. filed a complaint against B.F. alleging two causes of action:  (1) domestic violence under Civil Code section 1708.6; and (2) sexual battery under Civil Code section 1708.5.   

The case was tried over two days in March 2022.  Neither party requested a written statement of decision, and the court did not issue one.  After trial, the trial court concluded that M.A. did not establish a dating relationship existed, which was required for the tort of domestic violence.

On appeal, the parties and the Court of Appeal agreed that under the DVPA, a “‘dating relationship’” consists of “frequent, intimate associations primarily characterized by the expectation of affection or sexual involvement independent of financial considerations.”  (Fam. Code, § 6210.) 

The Court of Appeal concluded that the proper standard of review was substantial evidence: “‘The ultimate determination is whether a reasonable trier of fact could have found [the existence of a dating relationship] based on the whole record. “ Under the substantial evidence standard of review, the Court of Appeal resolves  “all factual conflicts and questions of credibility in favor of the prevailing party and indulges[] all reasonable inferences to support the trial court’s order.” It noted that other Court of Appeal cases confirm that this particular question  “is inherently fact‑intensive and case‑specific.”

The Court of Appeal rejected M.A.’s contention that the proper standard review was de novo because this was not a pure interpretation of the law on undisputed facts: “[E]ven though B.F. presented no contradictory testimony, the trial court was not bound to accept the veracity of M.A.’s testimony that she and B.F. ‘always’ talked and texted in between their sporadic in-person interactions,” since “[c]redibility determinations are solely for the trier of fact.” Further, the “trial court noted the social media communications in evidence were ‘initiated mostly’ by M.A. and reflected no amorous responses from B.F.; indeed, some of his responses consisted of a single word.” After reviewing the “timing and content” of these messages,” the trial court found they “did not reflect frequent and intimate associations” under Family Codes section 2610.  This ruling could not be disturbed on a substantial evidence review.

Justice Sanchez filed a dissenting opinion. He advocates for de novo review over the substantial evidence standard because M.A.’s testimony was undisputed and because B.F. did not testify (though the majority notes M.A. was thoroughly cross-examined). He highlights the Legislature’s intent to cover a wide range of intimate relationships under “domestic violence.” Principally, he argues that “frequency” should not be a strict criterion for establishing a dating relationship. Rather, the focus should be on trust and vulnerability. Justice Sanchez would have reversed the judgment.

Author’s Note:  I think both the majority opinion and the dissenting opinion get some things wrong here, but I agree with the majority that this is a question of evidence, not of law.

First, the majority should have applied an even stricter standard of review. As a plaintiff, M.A. had the burden to prove all the elements of her claim, including whether there was a dating relationship. But where “the party with the burden of proof did not carry its burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.” (Estes v. Eaton Corporation (2020) 51 Cal.App.5th 636, 651.)

In these situations, “the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.” Specifically, the Court of Appeal must ask “whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’” (Id.)

This distinction is especially important in light of the dissent. The dissent argues “[t]he facts of this case…are essentially undisputed” because “B.F. chose not to testify and called none of his own witnesses.”  Accordingly, Justice Sanchez determined de novo review was appropriate. But the trier of fact was allowed to disregard all of M.A’s testimony because it is “not required to believe even uncontradicted testimony.” (Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233, 241.)  Further, as the majority opinion notes, M.A. was “thoroughly cross-examined.

Beyond this, under the heightened standard of review noted above, “unless the trier of fact made specific factual findings in favor of the losing plaintiff, [the Court of Appeal] must presume the trier of fact concluded that ‘plaintiff’s evidence lacks sufficient weight and credibility to carry the burden of proof.’” (Estes, 51 Cal.App.5th at 651.) Moreover, no statement of decision was requested, and the same district and division has held that the failure to request a statement of decision when available requires the unequivocal application of the doctrine of implied findings. (See In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1249 [adopting the consensus “that appellant’s express or implied waiver of a statement of decision on the appealed issues unequivocally invokes the doctrine of ‘implied findings.’ ”].)

Di Martini v. Superior Court

Di Martini v. Superior Court
01/22/24 CA 1/3: A168529

In this case, Petitioner Di Martini filed a writ petition requesting review of the trial court’s denial of his motion to expunge a lis pendens. The petition was granted.

Section 405.36 Interpretation

Code of Civil Procedure section 405.36 states: “Once a notice of pending action has been expunged, the claimant may not record another notice of pending action as to the affected property without leave of the court in which the action is pending.”

The Court of Appeal held, under Code of Civil Procedure section 405.36, Real Party in Interest Gupta was required to seek leave from the trial court before recording a second lis pendens on the same property after a prior lis pendens was expunged. This was so even if the second lis pendens was recorded in a subsequent/different proceeding.

Real Property Claim and Prima Facie Standard

The Court of Appeal further held that the trial court incorrectly applied a prima facie standard to determine the probable validity of Gupta’s real property claim. Instead, a preponderance of the evidence standard should have been used. The Court of Appeal further clarified that Gupta’s complaint did assert a real property claim as it involved the sale and transfer of property title, rejecting De Martini’s argument for expungement on those grounds.

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