Family Law

Recent Family Law Cases

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FAMILY LAW (current through 10/20/2022)

By:  Andrew Botros, CFLS

In re Marriage of Knox

9/9/22, CA 5: F081092

This was a challenge of the denial of a pendente lite fee order under Family Code section 2030. Though the appellant made a pendente lite fee request, the trial court did not rule on the issue of attorney fees until the conclusion of the trial. The appellate court concluded that the trial court violated Family Code section 2030 by not ruling on the appellant’s attorney fee request, as the statute requires a reasonably prompt ruling on such a request. The failure was prejudicial because the self-represented appellant failed to have a grant deed that would have established a transmutation in her favor admitted during the trial. The appellate court further concluded that, if the appellant was represented by counsel, it was reasonably probable that the grant deed would have been offered and admitted into evidence and that she would have prevailed on the transmutation issue.

CSV Hospitality Management LLC v. Jermorio Lucas

9/20/2022, Certified for Publication on October 17, 2022, CA 1: A163345

This is an appeal of restraining order under the Workplace Violence Safety Act. The defendant challenged the trial court’s ruling that he could not cross-examine a witness because the hearing was not a court trial, and there was no authority to allow cross-examination at such a hearing. The appellate court reversed on two bases. First, it concluded that the failure to permit cross-examination violated Code of Civil Procedure section 527.8, which requires the trial court to “receive any testimony that is relevant.” Notably, this language is analogous to Family Code section 217, which requires the trial court to “receive any live, competent testimony that is relevant and within the scope of the hearing” absent a finding of good cause. Second, the appellate court concluded that by precluding cross-examination of this key witness, the defendant’s due process rights were violated.

CSV Hospitality Management LLC v. Jermorio Lucas

10/17/2022, CA 4/3: G060411

Following LaSalle v. Vogel (2019) 36 Cal.App.5th 127, 137, the appellate court reversed the denial of a set aside request under Code of Civil Procedure sections 473(b) and 473.5. Under LaSalle, an attorney has both an ethical and statutory obligation to warn opposing counsel, if counsel’s identity is known, of an intent to seek a default and to give counsel a reasonable opportunity to file a responsive pleading. The trial attorney’s failure to so warn opposing counsel alone would have justified the set aside of the default judgment.

Golf & Tennis Pro Shop, Inc. v. Superior Court (Frye)

10/17/22, CA 4/3:  G060852

This was a challenge of a discovery order by way of a petition for writ relief. The appellate court concluded that the 45-day time period to file a motion to compel further responses to interrogatories did not begin to run upon service of a combination of unverified responses and objections if the motion challenges only the objections.

DEPENDENCY (current through 10/16/2022)

By:  John Nieman

In re R.O.

9/20/22, CA 3:  C094816

Mother appealed the jurisdiction and disposition findings. The mother failed to appear as ordered to a hearing to confirm (presumably among other things) the future trial on jurisdiction. The mother was not advised of the consequences of her failure to appear, namely, that the trial court might convert that confirmation hearing into an uncontested hearing and proceed by default, including disposition. Mother failed to appear and, over objection by mother’s counsel -who confirmed mother’s readiness for the upcoming trial, the trial court proceeded by default. The Appellate Court reversed, ruling that failure to advise mother of the full consequences of her nonappearance violated her due process rights. Other procedural errors were noted (if not highlighted) in the opinion.

In re Baby Girl M.

9/21/22, CA 2/5:  B311176

This is an Indian Child Welfare Act (ICWA) case. Father appealed the Disposition (and Jurisdiction) orders, alleging the trial court erroneously found the ICWA did not apply. The Department of Children and Family Services (DCFS) conceded its failure to conduct an adequate initial inquiry into possible application of the ICWA. Parties stipulated to a remand after a proper ICWA inquiry was begun. The appellate court declined to remand as stipulated. The appellate court asked for briefing on the questions of whether a remand without orders was appropriate and whether the appeal was moot. Based on limited information contained in the opinion, it does not appear that either party adequately addressed either issue. In any event, the Court found the appeal to be moot, as there was no remedy it could provide given that DCFS had already begun a proper ICWA inquiry. Presumably it could not go back in time to fix orders, especially those made without additional ICWA-related information, that are normally the province of the trial court to make. [This opinion fails to address, nor specify facts related to, the questions of 1) rendering remediless statutes that require full and prompt ICWA inquiries, and 2) the way affirmative ICWA determinations impact placement decisions at Disposition (e.g. no information was presented about with whom -relatives versus nonrelatives- Baby Girl M. was placed).]

In re G.H.

10/6/22, CA 4/3:  G061166

Parents challenge negative findings on the beneficial bond exception of Welfare & Institutions Code 366.26(c)(1)(B)(i) resulting in termination of parental rights and application of the Indian Child Welfare Act (ICWA). It is undisputed that the Social Services Agency (SSA) failed to conduct a proper inquiry as required by Welfare & Institutions Code (W&I) §224.2(b). Father claimed possible Native American ancestry on his mother’s side and provided a method to contact her, though he was estranged from her. A motion of Code of Civil Procedure (CCP) §909 was filed to admit new evidence that the proper inquiry was conducted after the termination decision. It denied to apply Code of Civil Procedure §909 because it should be used sparingly, citing In re Zeth S. (2003) 31 Cal.4th 396, 405. More importantly it pointed out that the evidence being proposed to render the error harmless failed to mention the very paternal grandmother who is the most important source of information lacking in the original inadequate investigation.

Impliedly, the trial court ruled that the parents did not have a beneficial relationship with G.H. Father claimed erroneous application of In re Caden C. (2021) 11 Cal.5th 614 (Caden C.). He claimed the trial court jumbled the first 2 prongs of the Caden C. test (regular and consistent visitation, and that the relationship is beneficial to the child) by requiring that his relationship be parental as opposed to beneficial. G.H. addressed father as Dada and had trouble separating when parental visits ended. The appellate court ruled that there was no error by the trial court in applying the first 2 prongs of the test (regular and consistent visitation, and that the relationship is beneficial to the child). In particular it cited the trial court’s acceptance that their visitation was generally consistent and lauding of the parents for maintaining a parental relationship despite contact limitations. The appellate court also pointed out a lack of evidence to support a finding in the third prong of Caden C. (a parent’s burden to show that severance of the parent-child relationship would be detrimental to the child). Notably, father did not claim error relating to the trial court‘s ruling as to the third prong.

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