ONCALL
...Family Law
......Procedure Before Trial/Hearing
 141 Cards On This Topic:
  • Termination of employment relationship can revoke arbitration agreement and it is not resurrected if the parties establish a new relationship where arbitration is not discussed.
  • By awarding prejudgment interest to compensate P for damages it suffered because of D's failure to pay, court entered a judgment that differed materially from the terms of the agreement, and was unauthorized.
  • Although trial ct. abused its discretion by refusing to grant a continuance after F's atty withdrew on the eve of trial, error was not prejudicial because it was not reasonably probable that an appropriate continuance would have changed the result.
  • Sanchez precludes an expert in a Family Law case from relying on and relaying case-specific hearsay unless evidence that would independently prove the fact is admitted.
  • Employer waived right to arbitration where it failed to pay arb's filing fee on time–CCP §1010.6 electronic service does not apply to e-mailed fee invoice but only service of documents in action filed with the court, which does not include arbitration.
  • Arb judgment reversed where arbitrator’s credibility finding rested on unacceptable misconceptions about D's English proficiency and language acquisition, giving rise to a reasonable impression of possible bias.
  • Disbarred, self-represented attorney properly declared a vexatious litigant where she filed at least five qualifying litigations within the past seven years that were "finally decided adversely" to her.
  • As arbitrator must receive fees and costs for pending proceeding w/in 30 days after the due date, RPIs' mailed payment, received two days after grace period, was untimely.
  • Trial court should have denied motion disqualifying opposing counsel, with dual witness/trial counsel role, where client gave informed written consent and no evidence of prejudice to opposing parties or detriment to the judicial process.
  • Evidentiary hearing properly denied where request not properly made.
  • Trial court's on the record findings were sufficient to justify the denial of H's request to receive oral testimony.
  • Although H failed to comply with court order for payment of costs, the circumstances did not show he willfully obstructed or failed to comply with the trial court orders at issue in the appeal.
  • D's default set-aside motion properly granted as void for defective service where P, a party, personally served the moving papers on D; "substantial compliance" did not apply.
  • Because ex-W had withdrawn her accounting RFO, and ex-H filed a purported restoration RFO after temp. judge's appointment order terminated, judge did not have jurisdiction to rule on it.
  • Terminated employee entitled to withdraw from arbitration where employer was tardy in paying arbitration fees; arbitrator cannot cure a missed payment.
  • Remand required where court erroneously applied CA law to determine whether claims related to assigned 3d party invoices from IL, containing forum selection/choice-of-law clauses, should be pursued in IL.
  • Employer's principal properly added as alter ego judgment debtor where court examined, and principal met, all the circumstances necessary to apply the doctrine.
  • Order compelling nonparties to comply with SDTs vacated where they were improper discovery subpoenas, despite being labeled "hearing" subpoenas.
  • Nursing home failed to prove P's adult Cs had actual or ostensible authority to execute arbitration agreements on P's behalf; burden to prove signatory acted as agent not met by relying on statements of purported agent alone.
  • By misrepresenting the record and the trial ct.'s contrary comments on appeal, P forfeited her concealment issue.
  • An order denying a renewed motion for reconsideration, including a renewed motion to compel arbitration, is not appealable.
  • Filing illegally obtained wiretap evidence on a public court docket is conduct not immunized under Noerr-Pennington as it is not petitioning activity.
  • A disclosure that is not required of the arbitrator cannot be the basis for vacating an arbitration award.
  • PTSD sufferer's oral request under CRC Rule 1.100, made 5 days before depo, for an accommodation to have W present was not untimely; written request not required.
  • Trial court has discretion to award attorney fees and costs to a party who obtains a judgment confirming, correcting, or vacating an arbitration award.
  • Request to cross-examine other party properly denied where not relevant to UCCJEA jurisdictional determination.
  • W consented to court's jurisdiction under FUSFSPA by filing for divorce in CA, seeking confirmation of "all" premarital s/p, asking court to determine "any" c/p assets, and requesting the appointment of retirement account expert.
  • Counsel's knowing use of D's privileged documents, impermissibly downloaded by counsel's client from D's email, was proper ground for counsel's disqualification.
  • The unsolicited receipt of a biased ex parte communication from a third party about the pending matter is not a basis to disqualify a judge for cause.
  • Where client's threshold showing that former attys' x-complaint was based not on extortion but on protected activity, and former attys did not show a probability of overcoming client's litig. priv. defense, ct. properly granted special mtns. to strike.
  • In order for a lawyer to owe a duty to a nonclient third party, the client's intent to benefit that third party must be "clear," "certain" and "undisputed."
  • RFO to modify support properly dismissed based on disentitlement where H was chronically delinquent on support obligations.
  • Request to dismiss appeal based on disentitlement properly denied.
  • Blanket disentitlement order to future appeals based on past failures to comply improper.
  • Order made without prejudice does not bar subsequent action on same issue.
  • H forfeited right to live testimony on his inability to pay by not requesting it below; making only a general request to present evidence insufficient.
  • Citizens group did not establish a probability of prevailing on their malicious prosecution claim where they could not show that law firm lacked probable cause or acted out of malice in naming them in quiet title action.
  • Where decedent found indigent, Ds must agree to pay all arbitration fees and costs, or waive the right to arbitrate.
  • As DVRO litigants are generally unrepresented by counsel, special burden placed on bench officers to protect the fundamental due process rights of these pro per litigants.
  • Since the relevant factors favored shifting the BOP to Mother on F's RFOs, she bore the burden as to C's status as a full-time high school student for FC §3901 c/s purposes.
  • FC §217 did not mandate live testimony in FC §3901 case where parties indicated their desire to rely solely on declarations.
  • Process server's POS and detailed declaration of diligence was substantial evidence to support trial ct.'s decision that substituted service of the S&C was properly effected.
  • No relief under CCP §473(d) where default judgment was voidable, not void; court has no statutory power under section 473(d) to set aside a judgment that is not void.
  • Default judgment based on a complaint that apprises a D of the nature of the P's demand but does not adequately state a C/A is in excess of jurisdiction, rendering a judgment voidable rather than void.
  • Anti-SLAPP motion to strike malicious prosecution suit properly denied where Ps met burden of showing D attorney's motions lacked probable cause and evinced indifference, even malice.
  • Error to grant P's motions to compel compliance with subpoenas for company's records where motions were brought under the wrong CCP section and were not timely.
  • Flatley exception to anti-SLAPP protection did not apply where lawyer's rejection of demand letter fell within the boundaries of professional conduct and P failed to show a probability of prevailing.
  • D's cross-complaint in prior KS action is one of the "five litigations" required for CCP §391(b)(1) vexatious litigant finding.
  • D's failure to timely pay its share of arbitration fees resulted in a material breach of arbitration agreement and allowed P to proceed in court.
  • DA's repeatedly misgendering D before the jury did not amount to prejudicial misconduct given the circumstances here.
  • Court-appointed real estate broker had quasi-judicial immunity in partition action where he acted as a limited agent for the court.
  • Where arb K permeated with unconscionability, court cannot simply sever the offending provisions; that would require rewriting to create a K to which parties never agreed.
  • Litigation privilege barred H's tort and breach of K claims against W and investigator in anti-SLAPP case between the couple arising from divorce proceedings.
  • Order denying P’s motion to set aside default and default judgment reversed where P's trial counsel breached its ethical and statutory duty to advise D’s counsel of the intent to seek default.
  • Hybrid responses and objections to interrogatories must be verified before 45-day period to file motion to compel further responses begins to run.
  • Under CCP §1281.97(a)(1), D was in material breach of the arbitration agrmt even though its delay in payment was brief and no prejudice to P; statute not preempted by FAA.
  • Though court can exclude evidence as sanction for violating order to exchange witness lists, exclusion of sole witness petitioner's testimony, for not having been on list, was abuse of discretion.
  • A family court's discretionary authority to grant continuances for pendente lite RFOs is somewhat limited by the requirement to hear the RFOs "with reasonable promptness."
  • A judge has the discretion to take reasonable steps, appropriate under the circumstances and consistent with the law and the canons, to assist a pro per litigant.
  • Agent's authority to make "health care decisions" on principal's behalf under advance directive does not include executing optional arbitration agreements.
  • Evidence of potential harm to family members anywhere is a legitimate consideration in determining whether a party should be granted anonymity in litigation.
  • Attorney's duty of candor requires calling contrary controlling legal authority to court's attention.
  • Attorney's duty of candor to the court includes the duty to cite controlling legal authority directly adverse to the position of the client.
  • If the party that drafted the arbitration agreement fails to pay their share of the fees timely, the court may refuse to compel arbitration.
  • Order disqualifying attorney who would also be a witness at trial improperly based on ABA witness-advocate rule, which contains no provision for informed consent.
  • If attorney’s actions about continued representation are equivocal, statute of limitations may not have begun to run.
  • Anti-SLAPP explained.
  • An order denying a vexatious litigant’s request to file new litigation is not an appealable order.
  • Communications with “some relation” to judicial proceedings are absolutely immune from tort liability, including claims of intentional interference with contractual relations.
  • Where a nonresident D purposefully sends tortious communications into a forum and thereby injures its residents, D can be sued in that state.

  • Choice of law provision cannot divest a court of jurisdiction.
  • Father had standing to move to disqualify Mother’s attorney based on alleged simultaneous representation of Mother and child.
  • Disqualification reversed where no evidence of simultaneous representation.
  • A motion to disqualify counsel may be brought by a present or former client or a nonclient based upon a third party conflict of interest or other ethical violation.
  • Judges may personally and substantially participate in a particular case or matter through decision, recommendation, or the rendering of advice on it.
  • Attorneys have a duty to advise clients of the potential risks of filing an unmeritorious lawsuit.
  • Options if parties to mandatory arbitration agreements cannot pay their share of fee.
  • Disqualification of a judge pursuant to CCP §170.6 does not require the invalidation of previous orders, as does §170.3.
  • Introduction of hearsay at a custody hearing not reversible error absent showing of prejudice.
  • Threats made in settlement demands to expose a party's unrelated alleged criminal activities if demands are not met may constitute extortion, unprotected by anti-SLAPP.
  • H's serving his out-of-state W by mail did not give CA in personam jurisdiction over her, such that her subsequent petition was first in time.
  • Making a motion to quash an out-of-state petition for dissolution does not give CA jurisdiction where the other court has already acquired in personam jurisdiction.
  • A request for a DVRO, filed in a pending dissolution case, is a motion in that case and may be heard by the private judge.
  • DVPA request need not be filed first with the court clerk before being filed with the private judge.
  • CCP §170.1 disqualifies a judge who holds stock in the parent corporation of a wholly owned subsidiary, where the subsidiary, but not the parent, is a party to the action.
  • To DQ an arbitrator, a party must object at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification, even if during the proceeding.
  • Live testimony properly denied upon a showing of good cause and the proffered evidence was not relevant and within the scope of the hearing.
  • The People may assert a public interest to unseal documents used at F/L trial or submitted as a basis for adjudication.
  • The sealed records rules apply to discovery materials “used at trial or submitted as a basis for adjudication.”
  • Financial privacy must be balanced against the federal constitutional right of access to court records.
  • Protective orders regarding use of documents exchanged in proceedings are not subject to unsealing motions.
  • If the underlying suit on which the lawyers worked lacked merit, then their alleged malpractice could not have had an impact, because the client would have lost anyway.
  • Errors under CCP §2015.5 may be found to be harmless.
  • Venue for civil harassment due to emails or phone calls is location from which they were sent, not where they were read.
  • The civil harassment Judicial Council form does not control venue.
  • A TRO issued by a court without proper venue is not void.
  • The civil harassment Judicial Council form does not control venue.
  • The requirements for specific jurisdiction are met when a D travels to a state and, while there, injures the plaintiff.
  • H did not make a compelling case that a CA forum for a tort action was unreasonable.
  • If requirements for substituted service are not met, the judgment resulting therefrom is void for lack of fundamental jurisdiction.
  • After a F/L court acquires jurisdiction to divide c/p in a dissolution action, no other department may make an order adversely affecting that division.
  • In a quiet title action, service by publication must include either the address or legal description; APN number alone is insufficient.
  • If a party does not speak or understand English sufficiently to comprehend a contract in English, it is incumbent upon the party to have it read or explained to him.
  • When it is not disputed the community has an interest in s/p, the burden to provide the necessary information falls on the parties equally.
  • Injury for purposes of PMA occurs when a provision is not enforced.
  • No error to deny an evidentiary hearing where party doesn't specify the relevant evidence which will be produced and instead relies on vague representations.
  • A plaintiff may not evade the federal domestic relations exception simply by filing her diversity case against a corporate entity associated with her ex-spouse.
  • Private judges have a continuing sua sponte obligation to update their disclosures as quickly as practicable as circumstances change.
  • In an ongoing trial, where one party is missing a key piece of evidence necessary to avoid an unjust result, court has inherent authority to grant a continuance so it can be introduced.
  • Court cannot delegate discretion to determine whether payment of fees to Department would be a hardship on conservatee.
  • An order denying an inconvenient forum motion can be challenged on appeal from a final judgment.
  • A party may seek to disqualify a judge or arbitrator for cause if, due to “impairment,” the judge is “unable to properly perceive the evidence or is unable to properly conduct the proceeding,” but must do so ASAP.
  • Type of jurisdictional error determines whether a judgment is void or voidable.
  • A nonstatutory motion for judgment on the pleadings, especially when made in the form of an in limine motion, is disfavored.
  • In order to recover in a malpractice action, P must establish that but for D's alleged negligence, P would have obtained a more favorable result-speculation is not sufficient.
  • Reviewing courts are wary of using procedural shortcuts to deny parties the right to trial on the merits.
  • Arbitrator's failure to disclose ex parte communication with opposing counsel is misconduct and grounds to vacate the award.
  • Formally substituting out does not start the statute of limitations running if the attorney continues to provide legal services.
  • Where online posts by out-of-state D are directed at a CA resident and intended to have an effect here, CA can exercise personal jurisdiction.
  • Judicial review of an arbitration award is extremely limited.
  • An arbitrator has the authority to find the facts, interpret the contract, and award any relief rationally related to his or her factual findings and contractual interpretation.
  • Parties cannot contract away CA's statutory arbitration protections, including mandatory disqualification of a proposed arbitrator upon a timely demand.
  • Service by social media is not authorized in California (yet).
  • H's fraudulent transfer of property to W in a sham divorce not protected by litigation privilege because the act of transferring the property constituted the gravamen of the UVTA action, not the MSA.
  • A plaintiff seeking an accounting is not excused from section 580’s requirement to state a specific dollar amount to support a default judgment granting monetary relief.
  • Requirements to divide c/p in a default.
  • Arbitrators are not required to disclose facts about their backgrounds that are not relevant to the issues before them.
  • Inconspicuous arbitration agreement buried in fine print will not be enforced.
  • Appearance by an authorized representative equates to personal jurisdiction over party.
  • No statute of limitations runs against a party in possession of real property so long as other party doesn't assert an adverse claim that disturbed P's possession or threatened his claim to superior title.
  • Impugning the integrity of the trial judge without facts is rarely a good idea.
  • Court of Appeal accepts the trial court's determination of the credibility of witnesses presenting testimony by declaration.
  • Although the trial court must defer to a Referee’s findings, it is not bound to accept them.
  • Filing a substantive opposition to a motion is a general appearance.
  • Party has duty to notify court if address changes during proceedings.
  • A request for a continuance must be made either by a noticed motion or an ex parte application and supported by written evidence.
  • Trial courts have inherent power to exclude evidence not produced in discovery.
  • A court retains discretion to disqualify a likely advocate-witness as counsel notwithstanding client consent where there is “a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process."
  • For the court to exercise specific jurisdiction, the controversy must relate to, or arise out of, the defendant’s contacts with California.
  • The filing of a motion to designate someone a vexatious litigant stays all further proceedings until question is resolved.
  • Confrontation clause and Sanchez arguments forfeited because trial counsel failed to make a specific objection and change in law made by Sanchez was foreseeable.


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