Family Law
Recent Family Law Cases
FAMILY LAW (Through 03/23/25)
By: Andrew Botros, CFLS, CALS
The precise holdings in a given case are bolded. Auther’s note is italicized.
03/18/2025 CA 2/7: B329889 – Segal, J.
https://www4.courts.ca.gov/opinions/documents/B329889.PDF
In this case, the Court of Appeal reversed the trial court’s order denying the defendant’s motion to set aside a default under Code of Civil Procedure section 473, subdivision (b). That provision mandates relief when a default results from an attorney’s mistake. The trial court denied the motion based on its mistaken view that litigation strategy does not qualify as “attorney fault” under section 473(b).
Citing Solv-All v. Superior Court, the Court of Appeal emphasized that under section 473(b), “it doesn’t matter a whit whether the default was due to gross carelessness or bad strategy” of the attorney if the client did not knowingly participate. Because there was no evidence the defendant directed or approved any delay, the court held that section 473(b) protected him from the judgment caused by his attorney’s error.
The Court of Appeal distinguished Jerry’s Shell v. Equilon Enterprises, LLC, explaining that it involved “a long, consistent pattern of discovery abuse” that justified terminating sanctions. In contrast, defendant’s counsel had merely sought “at most an additional 30 days” to respond and had not engaged in prolonged or repeated misconduct. Requiring the defendant to remain in default for his attorney’s conduct, the panel reasoned, would undermine the strong policy favoring decisions on the merits. It therefore reversed both the default judgment and the related attorney’s fee award, directed the trial court to set aside the default, and gave the defendant ten days to file a new responsive pleading.
Johnson v. Department of Transportation
03/17/2025 CA 3: C099319 – Feinberg, J.
https://www.courts.ca.gov/opinions/documents/C099319.PDF
Background
Christian Johnson sued Caltrans for workplace discrimination, harassment, and retaliation. During the litigation, Caltrans attorney Paul Brown sent a confidential email to Johnson’s supervisor, Nicolas Duncan. The email was marked as a “privileged attorney-client communication” and warned: “Any unauthorized review, use, disclosure, or distribution is prohibited.” Duncan photographed the email and shared it with Johnson, who forwarded it to his attorney, John Shepardson.
Caltrans immediately objected. Counsel wrote: “Mr. Duncan does not have the authority to waive attorney-client privilege on behalf of [Caltrans],” and demanded that Shepardson “delete or destroy the email.” Shepardson refused, arguing the privilege had been waived by disclosure and asserting that Caltrans’ contentions were “false and misleading.”
The trial court disagreed. It found the email was privileged because its “dominant purpose was to obtain relevant information from Duncan” and to prepare Caltrans’s defense. The trial court issued a protective order prohibiting further dissemination and requiring destruction of all copies of the e-mail. It explicitly ordered that the e-mail could not be introduced as evidence at trial.
Despite the order, Shepardson continued to use the email. He told Caltrans he would offer it at trial, provided it to three experts, and, according to the court, “continued to refer to, disclose and discuss the Brown email.” Caltrans then moved to disqualify both Shepardson and the experts.
The trial court granted the motion. It found Shepardson had “made the decision—early on—to use the Brown email in this litigation in spite of [Caltrans’] protests.” It emphasized that once counsel realizes a document “may be privileged,” they must refrain from using or disclosing the email while the parties and the court resolved the dispute as to the email’s status. Shepardson, however, “read the Brown email; he reviewed it; he studied it; he evaluated it; he shared it; and, he incorporated its contents into the case and into his trial strategy.”
Discussion
On appeal, the Court of Appeal affirmed. It held the trial court did not abuse its discretion in concluding that the e-mail was privileged. Caltrans’s counsel declared that the email was sent “within the scope of [his] representation of Caltrans” and for the purpose of preparing its defense. The email itself contained a footer stating it was a “privileged attorney-client communication” and intended “for the sole use of the intended recipient(s).” The Court of Appeal agreed with the trial court that the dominant purpose of the email was to obtain relevant information from Duncan in furtherance of Caltrans’s legal position.
The Court of Appeal also rejected Johnson’s argument that any attorney-client privilege was waived. It noted “the privilege is not waived when the client’s agent discloses a privileged communication without the client’s authorization.” Here, the privilege holder was Caltrans, as represented by its management, and Duncan was not part of Caltrans’ management. There was no other evidence suggesting that Duncan had the authority to waive the privilege on Caltrans’ behalf.
Johnson’s reliance on the crime-fraud exception also failed. The Court of Appeal found that his evidence consisted of “conclusory statements and accusations” and amounted to nothing more than “bare assertions of fraud.” He failed to make a prima facie showing that the email was “intended to enable or aid anyone to commit or plan to commit a crime or fraud.”
As it related to the disqualification orders, the Court of Appeal emphasized that Shepardson’s conduct went beyond a “mere disclosure” of a potentially privileged document. He had not only read and analyzed the email but also “shared it” and “incorporated its contents into the case and into his trial strategy.” The Court of Appeal agreed with the trial court that his continued involvement would have “a substantial and continuing effect on future proceedings in this action,” including both “[Caltrans’] rights against use of its privileged communications” and “the integrity of these judicial proceedings and public confidence in them.”
The Court of Appeal also pointed to the uncertainty around whether all copies of the email had been retrieved or destroyed. Shepardson gave inconsistent assurances and had continued communicating with witnesses about the email even after the court issued a protective order. The expert witnesses, too, had either reviewed the email or were uncertain whether they had, and the court found their future testimony risked further taint. Under these circumstances, the trial court did not abuse its discretion in concluding that disqualification was necessary to “preserve public trust in the scrupulous administration of justice and the integrity of the bar.”
This holding underscores the significance of safeguarding privileged communications and highlights what can occur when an attorney receives another party’s privileged document—particularly where the lawyer continues to use or distribute it even after its privileged status is asserted. As the Court of Appeal put it, “An attorney receiving the material . . . is not permitted to act as judge and unilaterally make that determination” about whether privilege applies. By ignoring that rule, Johnson’s counsel faced the “drastic remedy” of disqualification, an outcome the court deemed entirely proper.
Pateras v. Armenta (2025) 109 Cal.App.5th 142
02/27/2025 CA 2/6: B336065 – Gilbert, P.J.
https://casetext.com/case/pateras-v-armenta
The Court of Appeal affirmed a trial court order that $5,000 monthly payments Thomas Armenta received from the Chumash tribe’s general welfare program qualify were appropriately designated as “income” for purposes of calculating child support. “Why? Except for indigency, parents are obligated to support their children.”
Armenta, a Chumash descendant earning $114,000 a year, also received $5,000 monthly from the tribe’s general welfare program. He argued these payments were “need-based public assistance” and must be excluded from income under Family Code section 4058, subdivision (c), which states: “income derived from any public assistance program, eligibility for which is based on a determination of need” must be excluded from the gross income calculation.
The Court of Appeal rejected that argument. It emphasized the exclusion applies only to programs designed for the indigent—those providing “minimum necessary for the subsistence of that individual.” Armenta bore the burden to prove his tribal payments met that threshold but failed to do so. The Court of Appeal found the declaration by the tribe’s legal officer was conclusory and did not explain “how tribal members making in excess of $100,000 in annual salary qualify as persons who meet need-based standards.” The Court of Appeal concluded that the tribal program had no “income or financial limits to qualify,” and the payments were not “based on ‘actual need.’”
The Court of Appeal also noted that federal tax treatment does not control California’s child support determinations. “Even if these payments are not taxable under federal law,” the Court wrote, “the result does not change.” “A parent may have income that is not taxable but that would be available for support of the child.” Tribal payments, like bonuses or rent-free housing, fall within the broadly defined concept of “income from whatever source derived.”
The Chumash tribe appeared as amicus curiae, arguing the program supports housing, education, and cultural goals. But the Court of Appeal noted those general aims “do not set forth specific standards for awarding need-based benefits to individuals,” and emphasized that the legislative purpose of section 4058(c) is to protect children, not to shield high-income parents from their obligations.
DEPENDENCY (current through 03/16/25)
By: John Nieman
The precise holdings in a given case are bolded. Auther’s note is italicized.
In re J.B.
2/27/25, CA 4/2 E084220
https://www.courts.ca.gov/opinions/documents/E084220.PDF
The de facto parent appeals a decision to grant parents’ Welfare and Institutions code (W&I) §388 petitions for more reunification services after a W&I §366.26 hearing was calendared to choose a permanent plan -presumably adoption- for the child. The de facto parent had custody of the minor since she was 2 months old. The father’s W&I §388 petition was filed when the child was about 20 months old, the mother’s at about 22 months of age. The W&I §388 petitions were granted when the child was almost 2 years old.
The appellate court acknowledged that there was a split in authority as to the standing of a de facto parent to appeal a decision about placement of a minor in their custody (ostensibly a removal from them). In re P.L. (2005) 134 CalApp4th 1357 indicates a de facto parent does not have the right to appeal, while In re Vincent M. (2008) 161 Cal.App.4th 943 says a de facto parent does. There is a dissent to the In re Vincent M. case, with which this court agrees. The Appellate court concluded that because a de facto parent had no right to custody as does a parent or guardian, it had no standing to appeal; there were no rights that were aggrieved. Appeal dismissed.
In re J.F.
3/6/25, CA 2/5 B332110
https://www.courts.ca.gov/opinions/documents/B332110.PDF
This is an Indian Child Welfare Act (ICWA) case. Father appealed after guardianship was ordered at a W&I §366.26 hearing (to choose a permanent plan). He asked for conditional reversal in order to comply with the mandates of the ICWA. A stipulated reversal was agreed to by the parties to reinstate jurisdiction in order to conduct the investigation and respond according to the results of that investigation. A dispute arose about whether under these circumstances the guardianship (granted at the W&I §366.26 hearing) should be suspended pending the investigation and subsequent legal proceedings (if any).
This court goes out of its way to point out that despite agreement by the parties about who should be asked about possible native American ancestry, it disagrees as to the paternal great aunt because she is not an “extended family member”.
The Guardianship appointment conditionally affirmed pending proper inquiry that does not necessarily include the paternal great-aunt. A dissent was filed.
In re M.V.
3/7/25, CA 2/8 B338420
https://www.courts.ca.gov/opinions/documents/B338420.PDF
This case marks the conclusion of permanency for the child M.V. The minor was the subject of In re M.V. (2023) 87 Cal.App.5th 1155, reviewed here 2/20/23. In that case the trial court erroneously denied a request for a supplemental bonding study to make up for the lack of evidence related to the second prong laid out in In re Caden C. (2021) 11 Cal.5th 614. That prong requires parents to prove that there exists a significant and beneficial relationship that, logically, is worthy of protection when analyzed by the case’s third prong which weighs the benefits of adoption versus the detriment severance of that (beneficial) relationship would cause.
The chief focus of the appellant parents was the trial court’s essential rejection of the bonding expert’s opinion that the child would suffer detriment were her secure attachment with her parents severed. The standard of review is abuse of discretion, meaning that the appellate court could only overturn the trial court’s judgement were there clear legal error or if the trial court’s conclusions were unsupported by the evidence. M.V., at 9 ½ years, testified briefly about her minimal feelings of safety with her parents. The record evinced that the child continued to suffer from the trauma of the abuse by the parents; she was still afraid to be left alone with the parents and to sleep alone for fear of being kidnapped by her parents.
This is a long opinion, some 54 pages with numerous claims of legal error and poor judgement. One interesting challenge was to the trial court’s efforts to bring a peaceful resolution of the dispute over the adoption by making a referral to the Consortium for Children. The efforts by the trial court in this regard were characterized as evidence that the trial court had already decided how it would rule on the question of adoption as the permanent plan. The appellate court found no evidence of such prejudice. Affirmed.