Recent Family Law Cases

Bailey v. Murray
5/9/2024; Certified for Publication on 6/5/2024 CA 4/2: E081558 – J. Raphael
https://www.courts.ca.gov/opinions/documents/E081558.PDF

In this case, the Court of Appeal affirmed several due process challenges to an award of a DVRO after hearing.

A Trial Court May Ask Questions At A DVRO Hearing, As Long As It Does Not Assume The Role Of Counsel for Either Party

Murray first challenged the trial court’s questioning of Bailey, arguing that doing so may have compromised the trial court’s role as a neutral arbiter. Though the Court of Appeal acknowledged that a trial court could “compromise its role if it assumed the advocacy role of one side’s attorney in questioning a witness,” the trial court did no such thing here. It noted that a trial court “has both the discretion and the duty to ask questions of witnesses, provided this is done in an effort to elicit material facts or clarify confusing or unclear testimony” and so long as the court does not assume the role of counsel for either party.  Such questioning must be “temperate, nonargumentative, and scrupulously fair.” Rather than have Bailey, who was unrepresented, “go through the pretense of posing questions to herself and then answering them, the trial court asked Bailey general questions that allowed her to tell the trial court the basis for her request for a DVRO.” The trial court acted appropriately in its questioning because those questions were neutrally posed, elicited testimony regarding the allegations of abuse, and sought details and clarifications.

The Trial Court Appropriately Admonished Murray’s Counsel’s Manner of Examination

Murray next objected to the trial court allegedly depriving him of due process by admonishing his attorney on how Murray should be examined. The trial court had suggested that counsel avoid leading questions while examining Murray. “This was sound advice, not a violation of due process.” The comments “did not limited Murray’s ability to present evidence and, if anything, assisted him in presenting his case.” Further, no jury was present that could be unfairly prejudiced by such comments.

The Trial Court Acted Appropriately When It Permitted Bailey to Testify Regarding Domestic Violence that was Not Included in Her Petition

Murray next objected that the trial court allowed “Bailey to testify about incidents of abuse she did not allege in her petition.” The Court of Appeal agreed with the trial court’s decision to permit this evidence, as the DVPA “does not impose on a victim of domestic abuse a pleading obligation that he or she describe all individual actions taken by the alleged abuser in the DVRO request in order to later to testify about those acts at the hearing, as long as the alleged abuser is placed on notice of the general allegations.” Here, Bailey’s allegations of sexual assault provided notice giving Murray a “meaningful opportunity to respond to the specific allegations at the hearing, and to request a continuance if he need[s] additional time to respond.” No continuance was requested. This evidence was relevant because it alleged abuse that occurred after the temporary restraining order had been issued. Such evidence is of acute importance to the primary purpose of any DVRO: to prevent acts of domestic violence and abuse from occurring in the future.

Mueller v. Mueller
6/3/2024 CA 1/5: A166577 – J. Burns
https://www.courts.ca.gov/opinions/documents/A166577.PDF

In this case, the Court of Appeal agreed with the trial court’s conclusion that a confidentiality clause contained in the parties’ collaborative law agreement was unenforceable. Accordingly, the trial court affirmed the admission of statements made during their negotiations.

This case was published to “highlight the importance of carefully drafting collaborative law agreements.” The Court of Appeal noted that, unlike mediations, there is no “evidentiary privilege” for collaborative law agreements.

Despite ostensibly including a confidentiality clause, the agreement also contained “sweeping language” that the agreement created no “legally enforceable rights.” If the agreement created no “legally enforceable rights,” but was construed to enforce confidentiality, “it would be a contractual version of Schrödinger’s cat—simultaneously enforceable and unenforceable.  The agreement is not reasonably susceptible to that interpretation.” The argument that public policy compels confidentiality also fell on deaf ears. The Court of Appeal noted that Ling cited no authority that permits the parties to “invoke public policy to make a contract term enforceable when the parties expressly agreed that” the contract is unenforceable. Further, the public policy arguments cut both ways. To give effect to the confidentiality provision was to “create an evidentiary privilege that would bar the admission of highly relevant evidence.” Only the legislature, and not the courts, may create new privileges not constitutionally mandated.

G.G. v. G.S.
6/3/2024 CA 2/4: B331994 – J. Zukin
https://www.courts.ca.gov/opinions/documents/B331994.PDF

In this case, the Court of Appeal reversed and remanded for a new hearing the trial court’s denial of a request to renew a DVRO. The original DVRO was based on a finding that G.S. stalked G.G. Specifically, G.S. planted listening devices in G.G.’s home, stalked her at least 70 times “in the small hours of the night,” sent unauthorized messages, and retained some level of access to G.G.’s Apple account.

The Court reiterated the Ritchie factors from Ritchie v. Konrad (2004) 115 Cal.App.4^th 1275. There, the Court of Appeal concluded that the operative question is “whether a reasonable person, in the petitioner’s circumstances, would fear repetition of the abuse if the order expired.”

The three factors are:

1. The factual predicate for the original DVRO, the evidence, and any findings upon which the order was based. While the mere existence of the order itself seldom if ever conclusively proves the order should be extended, “the findings and facts which supported making the order often will be enough in themselves to justify a renewal. Practically, this factor “asks the court to reacquaint itself with the nature of the problem, reminding the court to that the original evidence will often be enough by itself to justify renewal.”
2. Any significant change in circumstance that occurred after the DVRO was issued. If the protected and restrained parties have “moved on with their lives,” in a way that lessens the opportunity for or likelihood of future abuse, the need for the order may have dissipated. However, if little has changed or there is now an increased possibility of abuse, the need for the order continues. This factor requires the trial court to do more than “simply ask whether the restrained person has violated the terms of the order” and an ”order that has never been violated may still be renewed.” Practically, this factor “asks the court to check for any external reasons to believe that the situation has changed and the order is no longer necessary.”
3. Does the DVRO burden the restrained party? This factor may or may not be relevant, depending on whether there is a risk of physical abuse. While the “physical security of the protected party trumps all…burdens,” if the danger presented is “a few unwanted calls or letters or e-mail messages,” the court may weigh that danger against any burdens imposed by renewal. Practically, this factor “gives the restrained party the chance, assuming that chance has not been forfeited, to ask the court to ameliorate any burdens the order may place on them.”

In this case, although the trial court articulated Ritchie correctly, further scrutiny revealed it did not apply the factors correctly.

As to the first factor, the court “took the discussion no further than the observation that the original basis for the DVRO and respondent’s alleged post-order behavior” were based on stalking. The court, however, “did not mention the severity of the behavior that occurred the relationship, when appellant testified that respondent had manhandled her, cornered her, taken her phone, and followed her to work in a courthouse.” The Court also did not address “the various and repeated instances of threatening behavior that occurred after the relationship was over, when respondent placed a listening device in appellant’s home and would” appear at the home uninvited. As to the latter two factors, the Court did not find any change of circumstances or burden on the respondent.

The trial court’s oral statements suggested that “a DVRO can be renewed based on the original facts only if those facts included significant physical abuse” and further suggested that “the lack of subsequent intentional violations of the DVRO was sufficient to decide the issue.” The trial court erred in both respects.

The law, including Ritchie, does not permit courts “to make a distinction between physical and non-physical abuse when issuing DVROs.” Although a “brightline physical/non-physical distinction” appears in the third Ritchie factor, that “distinction operates as a potential limitation on the evidence offered in opposition to renewal; it does not affect the showing required to obtain renewal.”

Stalking, in particular, is “strongly associated with physical violence.” Men “who stalk their partners after a break-up are four times more likely to assault them.” Further, stalking and other controlling behaviors are more than just useful predictors of future physical harm. They cause significant psychological damage on their own. The “psychological toll of living with a stalking scenario can be a constantly traumatizing nightmare that may persist for months or years” because there is “very little” the victim can do to ameliorate “the multiple streams of abuse knocking at [his or her] door, haunting [his or her] phone, or poisoning [his or her] e-mail.” The impact “can be even worse where electronic surveillance is involved because that allows the abuser to create a sense of omnipresence, eliminating the victim’s ability to feel safe in any environment.”

The Court of Appeal again noted, consistent with prior law, that a DVRO’s renewal is not conditioned on the presence or absence of ongoing events. The Court noted that stalkers tend to be much more persistent when they have a previous relationship with the victim, and that they are “quick learners when it comes to observing the letter of the law while circumventing its spirit.”

In re Marriage of Dadashia
5/28/2024 CA 1/2: A163185 – J. Stewart
https://www.courts.ca.gov/opinions/documents/A163185.PDF

In this case, the Court of Appeal reversed the trial court’s failure to apply the Margulis burden-shifting framework to Wife where, with Husband’s consent, Wife transferred both community and Husband’s separate property to her brother to manage in Iran.

Under Margulis, “once a nonmanaging spouse makes a prima facie showing concerning the existence and value of community assets in the control of the other spouse postseparation, the burden of proof shifts to the managing spouse to rebut the showing or prove the proper disposition or lesser value of these assets.  If the managing spouse fails to meet this burden, the court should charge the managing spouse with the assets according to the prima facie showing.”

This rule was derived from the recognition that one party had “unequal access to evidence” and from the recognition of the “fiduciary duties of disclosure and accounting under numerous provisions of the Family Code including sections 721, 1100, 1101, and 2100.”

In Margulis, the husband had exclusive management and control of financial accounts post-separation and did not show the disposition of those funds. The Court of Appeal in that case determined that this situation required those funds be charged to him.

In this case, Wife did not manage and control the assets given to her brother to manage. However, as between the two spouses, the evidence established that Wife had sole control of the couple’s assets once they were sent to her brother in Iran and had sole access to information about those assets. There was no evidence presented that Husband “had meaningful access to her brother or even any communications with her brother about the control or disposition of those assets, nor that [Husband] had any meaningful access to records for the Iranian accounts or investments apart from information [Wife] obtained from her brother.” These facts “were sufficient to shift the burden under Margulis.” Even though Margulis “did not involve a third-party money manager, its rationale rests on the fiduciary and statutory duties between spouses, which are equally applicable here.” Namely, Wife had “vastly unequal” access to information and applying Margulis “furthers the statutory purpose of requiring complete transparency and accountability in the management of community assets and of providing a remedy to the nonmanaging spouse when a breach of that fiduciary duty occurs.” 

The Court of Appeal addressed whether “a prima facie showing has been made” is to be reviewed de novo. It then concluded that the required showing was made because Wife, through her brother in Iran, controlled real estate assets in Iran purchased during the marriage with community funds. Under Margulis, this shifted the burden to Wife to account for these assets.

The Court of Appeals then resolved whether the Margulis burden-shifting framework “applies to the separate property one spouse manages and controls post-separation.” It does. The unequal access to information in Margulis was present with respect to the separate property funds. Further, the “fiduciary duties imposed by Family Code section 721 apply to separate property.”

In re Marriage of Moore
5/21/2024 CA 1/3: A165038 – J. Fujisaki
https://www.courts.ca.gov/opinions/documents/A165038.PDF

In this case, the Court of Appeal reviewed the propriety of two motions to compel filed by Wife against non-parties, Rocket Lawyer and Acendi. Notably, these non-parties were held in Husband’s name, formed during the marriage, and were alleged to be community property by Wife.

Rocket Lawyer’s Appeal

Rocket Lawyer contended that the 60 day deadline to file a motion to compel had run, requiring the trial court to deny Wife’s motion to compel. Although the 60-day deadline ordinarily runs from when the deponent provides their objections, the objections were 1) made pursuant to a subpoena that was not personally served, but served by mail; and 2) included a specific objection to the failure to personally serve. On these facts, a “deposition subpoena that has not been personally served in compliance with [CCP] section 2020.220 imposes no obligations on a nonparty deponent” because doing so “would effectively mean that [Wife] was on the clock to bring a motion that was likely doomed to fail without its merits ever being addressed.”

Acendi’s Appeal

Acendi separately appealed the granting of a motion to compel filed against it. The Court of Appeal concluded that even though Wife’s meet and confer efforts began 56 days into the 60-day deadline, that did not per se mean Wife’s meet and confer efforts were inadequate. This is “but one factor in a broader analysis.” Other relevant factors “include the legitimacy and breadth of the discovery sought, the complexity of the dispute, the history of the litigation, the nature of the interactions between counsel, the nature of the issues, and the prospects for success.” Here, the Court of Appeal, reviewing the order in a light most favorable to affirmance as it must, concluded the trial court did not abuse its discretion in finding that Wife’s meet and confer efforts were adequate. In particular, the Court noted that the law does not require “extensive analysis of each demand and objection in every case, particularly where, as here, [Wife’s] position rested on broader arguments about the relevance of the discovery.”

The Court of Appeal also concluded that the trial court did not abuse its discretion in finding that Acendi had no reasonable or factual basis to point out the deficiencies in the meet and confer efforts. This was because the trial court “was sanctioning Acendi for its wholesale refusal to produce documents, which is most naturally understood as a condemnation of [Acendi’s] unreasonable set of objections” and because inadequate efforts to meet and confer only justify a wholesale denial of a motion to compel when the circumstances are “egregious” i.e. “cases of clear intent to burden or harass, cases of clear flaunting of statutory responsibilities, cases of established track records of lack of good faith, and the like.” That was not the case here.

The Court of Appeal next addressed Acendi’s argument that a “concise outline of the discovery request and each response in dispute” under Rule 3.1345(b)(2) was not an adequate substitute for a separate statement because the trial court had not granted the request to use an outline in lieu of a separate statement before Wife submitted her outline. The Court of Appeal concluded that the trial court could permit the use of an outline even though an order allowing the outline was not made prior to the outline’s submission to the trial court.

The Court of Appeal next addressed Acendi’s contention that its partial success in the motion to compel meant that sanctions could not be awarded as a matter of law. The Court of Appeal noted that Acendi prevailed on only a handful of requests and that the trial court acted in its discretion by looking “at the whole picture of the discovery dispute” in rejecting Acendi’s claims of substantial justification.

Finally, the Court of Appeal did reverse one aspect of the sanctions order against Acendi. It noted that meet and confer efforts made after a motion to compel is filed are not recoverable costs under the Civil Discovery Act because those were not costs incurred as part of bringing or opposing the motion to compel.