Recent Family Law Cases

Lorch v. Superior Court
5/16/2024 CA 4/1: D083609 – J. Buchanan
https://www.courts.ca.gov/opinions/documents/D083609.PDF

In this case our of San Diego Countyh, the Court of Appeal issued a writ of mandate reversing a trial court’s denial of a Code of Civil Procedure section 170.6 challenge.

Background

Lorch is a plaintiff in civil lawsuit against the car manufacturer, Kia. In October 2023, the case was assigned to Judge Longstreth for all purposes. Judge Longstreth advised that the case may be placed on the wheel depending upon his availability. Afterwards, Judge Longstreth’s clerk left a voicemail for Lorch’s counsel stating that the case was “picked up by Judge [Timothy] Taylor” for trial. On that same day, Judge Longstreth entered a minute order declaring “A master calendar assignment has been made as both sides have waived any challenge under [section] 170.6. Civil Jury Trial is continued pursuant to Court’s motion to 02/05/2024 at 01:30PM before Judge Timothy Taylor in Department 2004.”  Neither party was served with the minute order and the record did not reflect that either party waived a challenge under CCP 170.6.

Since neither party was served with the minute order, they acted in accordance with the clerk’s voicemail message. The next day, Lorch’s counsel submitted her peremptory challenge to Judge Taylor. Lorch’s counsel mistakenly checked the form’s “party” box instead of the “attorney” box, signing it on behalf of Lorch rather than as counsel’s own declaration. Judge Taylor denied the peremptory challenge on the grounds it was “untimely” and “not in proper form” because Lorch’s “attorney purport[ed] to sign for his client.” Lorch fixed the mistake and resubmitted the form that night. Judge Taylor denied this request as well. Lorch requested and was denied a stay to seek writ review. Judge Taylor presided over the jury trial, which Lorch lost. Lorch subsequently filed a petition for writ of mandate to have all of Judge Taylor’s orders, as well as the adverse judgment, set aside.

Lorch’s Writ Petition Was Not Barred by Laches

Kia did not defend the merits of Judge Taylor’s ruling that Lorch’s peremptory challenge was untimely. Kia also conceded that Lorch’s writ petition was filed within the 10-day statutory period. Kia, however, argued that laches should apply because it was unfairly prejudiced by Lorch’s delay.

The Court of Appeal did not decide “whether the equitable defense of laches is properly raised in opposition to a writ petition seeking relief from the denial of a section 170.6 challenge when the petition was filed within the statutory deadline” but noted that, even if it did, laches would not apply to these circumstances. Laches requires unreasonable delay. Lorch did not unreasonably delay the filing of her petition. Judge Taylor denied Lorch’s first section 170.6 challenge the day before trial started and Lorch requested, but was denied, a stay of the trial to seek writ relief. It would not have been realistic to expect Lorch to “get a writ prepared and filed and a stay entered before trial started, or even before it ended.” Once Judge Taylor denied the peremptory challenge and refused to stay the trial, Lorch’s attorneys had to devote “their full attention to the trial.”

Judge Taylor Should Have Granted Lorch’s 170.6 Challenge

Generally, a party may challenge a judge under section 170.6 at any time before a trial or contested hearing begins, subject to certain exceptions. The exception applicable here is the master calendar rule, which provides that where a party is “directed to the trial of a cause with a master calendar, the [section 170.6] motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial.” 

The Court of Appeal agreed with Lorch that the master calendar rule could not have been triggered by the court clerk’s voicemail as a matter of law. This is because the master calendar rule envisions that the parties’ attorneys are personally before the court at the time the assignment is made.

The Court of Appeal also concluded that San Diego Local Rule 2.1.3 was invalid, as it was inconsistent with section 170.6. Individual trial courts cannot act as surrogate master calendars, yet rule 2.1.3 allows an “assigned judge” to act “in his or her capacity as a ‘judge supervising the master calendar’” to “notify the parties of the name of the judge who has been assigned to try the case pursuant to the court’s master calendar.” Here, Judge Longstreth appears to have acted in the capacity of a judge supervising the master calendar when he reassigned the case to Judge Taylor. Local rule 2.1.3 essentially deputizes “every judge of the court to act as a master calendar judge,” contrary to rule 170.6 and the policy underlying the master calendar rule. The Court of Appeal also concluded that the rule is “invalid to the extent it allows a judge to act in the capacity of a master calendar judge without notification to the parties.” Even if Judge Longstreth was managing a true master calendar when he assigned the case to Judge Taylor, “the master calendar rule does not apply unless the parties had advance notice Judge [Longstreth] was acting as master calendar judge then.”

Further, Lorch had the “right to correct the box-checking error on her peremptory challenge form” when her attorney had mistakenly checked off “party” instead of “attorney.” A party’s “important right” under section 170.6 “should not be defeated by a failure to comply with a formality.”

When a party properly makes a motion under section 170.6 and the judge denies that request, that denial and all subsequent orders and judgments are null and void. Therefore, the judgment against Lorch was also void.

Bassi v. Bassi
4/15/2024; Certified for Publication on 5/9/2024 CA 6: H049873
https://www.courts.ca.gov/opinions/documents/H049873.PDF

Author’s Note: I usually leave any of my commentary until the end, but I wanted to point out right away that this is a long and detailed analysis because I think it has to be. This case does a great job of drawing the line between what is protected and unprotected conduct under California’s anti-SLAPP statute and does so within the context of a DVRO. Understanding where the line lies is necessary to ensure one does not cross it, as doing so results in a mandatory award of attorney fees and costs to a party whose anti-SLAPP motion is granted.

Susan Bassi challenged the trial court’s denial of her anti-SLAPP motion to strike a DVRO petition filed by her ex-husband, Robert Bassi. Through the vehicle of an anti-SLAPP motion, Susan asserted these communications were part of her legitimate pre-litigation activities related to her forthcoming RICO action against Robert. In response, Robert sought a DVRO, framing the communications as harassment and disturbing his peace under the Domestic Violence Prevention Act. The trial court rejected Susan’s motion and the Court of Appeal affirmed.

Anti-SLAPP (Strategic Lawsuits Against Public Participation) Law

This case demonstrates that even family law attorneys need to have some basic understanding of anti-SLAPP law.

California’s anti-SLAPP statute, Code of Civil Procedure section 425.16, “provides that a cause of action arising from an act in furtherance of a person’s constitutional right of petition or free speech in connection with a public issue is subject to a special motion to strike, unless the plaintiff…establishes a probability of prevailing on the claim.” A court “evaluates a special motion to strike in two steps. The first examines the nature of the conduct that underlies the plaintiff’s allegations to determine whether it is protected by section 425.16; the second assesses the merits of the plaintiff’s claim.”

In this case, the Court of Appeal focused on section 425.16(e)(2), which provides that “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law” is protected. The Court of Appeal emphasized that not all communications associated with a legal proceeding are protected; they must specifically relate to issues under judicial consideration and be relevant to the litigation. The Court of Appeal further elaborated that for communications to be protected, they must have a logical connection to the litigation and be made in good faith contemplation of litigation.

Only Some of Susan’s E-Mails Were Protected Under Code Of Civil Procedure Section 425.16(e)(2)

Susan’s e-mails that were deemed protected under the anti-SLAPP statute were those directly connected to the substantive issues of the anticipated RICO litigation and the preparation of that legal action. The Court of Appeal found that certain e-mails discussed a draft RICO complaint and provided substantial information relevant to the forthcoming legal action. One attached a revised draft of the RICO complaint and encouraged Robert not to underestimate Susan’s ability to support the federal RICO case with witnesses and information. Other e-mails continued to discuss the RICO action, including responses to actions by Robert’s attorney that could potentially lead to public court filings, and strategic considerations about the ongoing family law case in relation to the RICO matter. These e-mails were found to be made in connection with an issue under consideration or review in the anticipated litigation. The court noted that they either provided direct information about the draft complaint or discussed strategies and implications of the litigation, thereby falling within the protective scope of section 425.16(e)(2).

On the other hand, the court determined that many of Susan’s e-mails did not qualify for protection under the anti-SLAPP statute because they lacked a logical relevance to the anticipated litigation or did not further any discernible object of the litigation. These e-mails contained content ranging from allegations against Robert’s former family law counsel to various accusations involving Robert’s girlfriend and other unrelated third parties. The content was largely composed of assertions and innuendo without clear relevance to the RICO case. These e-mails were not considered to be made in connection with “an issue under consideration or review” in any judicial or legal proceeding, and they did not meet the relevance or good faith criteria necessary for protection under the anti-SLAPP statute.

Since Robert Meets the Second Prong and Established a Probability of Success on the Merits, It Was Proper To Deny Susan’s Anti-SLAPP motion Even If Some Of The Emails Were Protected Under Section 425.16

“If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken.”

Civil Code section 47(b), commonly known as the litigation privilege, provides that a “privileged publication or broadcast is one made…[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure.”

Any communication protected by the litigation privilege necessarily means that a defendant cannot prevail on the second prong of an anti-SLAPP motion. The Court of Appeal, however, did not find that the e-mails protected under section 425.16(e)(2) also fell under the protection of the litigation privilege. First, the Court of Appeal noted that 425.16(e)(2) and the litigation privilege “are not coextensive and serve different purposes.” The litigation privilege “serves broad goals of guaranteeing access to the judicial process, promoting the zealous representation by counsel of their clients, and reinforcing the traditional function of the trial as the engine for the determination of truth.” The privilege, however, “does not apply in the face of more specific statutes when application of the privilege would render the specific provision significantly or wholly inoperable.” Since Robert’s DVRO petition is “based in part on communications related to Susan’s anticipated legal action and in large part on other, unprotected e-mails, application of the privilege would render the DVPA ‘significantly or wholly inoperable,’ were its enforcement barred in these circumstances.”

As to whether Robert could make the minimum required showing on the merits, the Court of Appeal concluded that he could. Unlike Curcio, which involved only a single, private social media post and no harassing, threatening, or unwanted texts or e-mails, Susan’s e-mails “repeatedly addressed Robert (though he had counsel), intending to get under the skin and make him upset, nervous, or worried.” Even though “the e-mails contained no threats of physical harm or violence, and there is no evidence in the record that Susan engaged in other forms of unwanted contact with Robert during the post-dissolution period, the DVPA’s definition of abuse is not confined to physical abuse but specifies a multitude of behaviors which does not involve any physical injury or assaultive acts.” Neither does “the DVPA require, as a prerequisite to issuance of a restraining order, proof that the alleged victim (Robert) formally asked the alleged perpetrator (Susan) to stop the harassing contact.”

Byers v. Superior Court
5/7/2024 CA 1/5: A169321 – J. Jackson
https://www.courts.ca.gov/opinions/documents/A169321.PDF

This case addresses whether seeking attorney fees impliedly waives the attorney-client privilege. In this case, the plaintiffs requested attorney’s fees under the Brandt doctrine, which allows insureds to recover legal fees as damages when an insured is forced to litigate to obtain benefits due under an insurance policy. The Court of Appeal, in denying the writ petition, concluded that such a claim does indeed act as a waiver of privilege over these communications. The Court of Appeal reasoned that the defendant, USAA, was entitled to test the veracity and reasonableness of the fees, which even meant they were entitled to the underlying billing records that substantiated the fees.

The Court of Appeal cautioned that the waiver was limited in scope, so as not to unduly impinge on the attorney-client privilege. The waiver only extended to documents and communications that are directly relevant to the computation and justification of the claimed legal fees.

Author’s Note:  Does this case mean that when a party seeks need and ability based attorney fees in family court, they have impliedly waived the attorney-client privilege as to the documents and communications that are directly relevant to the computation and justification of claimed fees? I believe it does. In this case, the purpose of implying the waiver is to allow the party opposing the request to test the veracity and reasonability of the attorney fees. Under the Family Code, the veracity and reasonability of the fees incurred are threshold questions in any need and ability based fee request.

I don’t believe, however, that this extends to Family Code section 271 sanction requests because those do “not require a correlation between the sanctioned conduct and specific attorney fees.” (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1226.)

Masimo v. The Vanderpool Law Firm
5/2/2024 CA 4/3: G061829 – J. Bedsworth
https://www.courts.ca.gov/opinions/documents/G061829.PDF

In this case, the Court of Appeal affirmed a $10,000 discovery sanction levied directly against the attorney, Douglas Vanderpool.

Vanderpool first argued that since he was not the counsel of record when the disputed discovery motion was filed, no sanctions could be imposed on him. The Court of Appeal rejected this argument, clarifying that the statute does not restrict the imposition of sanctions solely to the counsel of record. Indeed, “any attorney” who advises conduct resulting in the misuse of the discovery process can be held liable. Further, the records indicated that Vanderpool advised the defendants to stonewall Masimo’s discovery efforts, an advisory role that clearly fell within the ambit of sanctionable behavior as per the statute.

Vanderpool next argued that Masimo’s counsel did not meet and confer, as required by statute. The Court of Appeal found that Masimo’s counsel had indeed attempted to meet and confer with Vanderpool, but Vanderpool simply refused.  Instead, Masimo communicated directly with the client, who affirmed that he was adhering to the objections originally formulated by Vanderpool.

A Comment on Civility

The Court of Appeal also lamented the erosion of civility within the legal profession. In one e-mail, Vanderpool wrote, “Your remedy is elsewhere, and an attorney with your billing rate should know that. We are not here to educate you.” In another e-mail with the subject “You are joking right?”, Vanderpool wrote: “In 30 years of practice this may be the stupidest thing I’ve ever seen. Robert is this really why you went to law school? Quit sending us paper. you know we are out of the case so just knock it off and get a life. Otherwise we’re going to be requesting sanctions against your firm for even bothering us with this nonsense.”

The Court of Appeal wrote:

Civility is not about etiquette. This is not a matter of bad manners. Incivility slows things down, it costs people money – money they were counting on their lawyers to help them save. And it contravenes the Legislature’s directive that “all parties shall cooperate in bringing the action to trial[.]” (Code Civ. Proc., § 583.130.) Incivility is the adult equivalent of schoolyard bullying and we will not keep looking the other way when attorneys practice like this. They will be called out and immortalized in the California Appellate Reports. Here, the lack of civility, throwing even more sand into the gears, coupled with the blatant and pervasive substantive discovery misuse could only have confirmed to the referee and to the court that monetary sanctions against Vanderpool were warranted in this case.