In the Court of Appeal
of the State of California
First Appellate District

JEFFREY ELKINS
Petitioner

vs.

Superior Court of the State of California, 
County of Contra Costa
Respondent

MARILYN ELKINS
Real Party in Interest

From the Superior Court for Contra Costa County
The Honorable Barry Baskin, Judge
Case No. MSD01-05226

PETITION FOR WRIT OF MANDATE OR PROHIBITION 

ISSUE PRESENTED

The Contra Costa County Superior Court, in an effort to streamline the presentation of evidence in contested family law trials, has adopted a local rule whereby direct testimony and the presentation of direct evidence at trial are virtually forbidden. All evidence must be “Reiflerized” and presented by declaration. Failure to comply with the Local Rules may result in the Court’s refusal to permit a party to introduce evidence at trial. In this case, that was precisely what resulted. 
	By local practice, individual judges promulgate their own pretrial orders which may be even more onerous than the Local Rules. In this case, the trial judge issued a “Trial Scheduling Order” on April 22, 2005 requiring, inter alia: “All exhibits to be introduced at trial shall be attached to, and explained in, the declarations. Any required evidentiary foundation for admission of the proposed exhibits shall be completely set forth in the declaration(s)….” The Order also required that the exhibits be in binder form and exchanged prior to trial. 
	Appellant, who appeared at trial in propria persona, prepared a binder of his trial exhibits and provided it to opposing counsel prior to trial, but failed to identify each exhibit in his declaration and state the evidentiary foundation for it. The trial court sustained an objection to 34 of 36 of Appellant’s exhibits based upon the failure to comply with the Trial Scheduling Order. Appellant, then having been denied his ability to present any sort of case, simply rested and the trial judge deemed the matter a default and entered judgment exactly as proposed by Respondent. 
	While Appellant appreciates the difficulties faced by busy family law departments and their desire to streamline the presentation of evidence, he believes that Contra Costa County’s Local Rule and this judge’s Trial Scheduling Order conflict with statutory and decisional law and can result, as they did in this case, in a denial of due process. 
	Appellant requests that a writ of mandate or prohibition be issued enjoining Contra Costa County Superior Court from enforcing this Local Rule/Trial Scheduling Order against him, order that the default judgment taken against him be set aside, and that the trial court be ordered to hear this case on the merits. 
AUTHENTICITY OF EXHIBITS

	All exhibits accompanying this petition are true copies of original documents on file with respondent court except the following:
	Tab 13, Copy of Reporter’s Transcript of September 19, 2005. The original is lodged with the Court herewith. 
The exhibits are organized by Tab in the Appendix filed herewith.

BENEFICIAL INTEREST OF PETITIONER; CAPACITIES OF 
RESPONDENT AND REAL PARTY IN INTEREST

	Jeffrey Elkins is the Petitioner in an action for dissolution of marriage in Contra Costa County case number MSD01-05226 
	Respondent is the Superior Court of Contra Costa County.
	Real Party in Interest is Petitioner’s former spouse Marilyn Elkins.
BASIS FOR RELIEF
	Appeal is not an adequate remedy at law since what Petitioner seeks is an order directing the Contra Costa County Superior Court not to apply either its published local rule 12.5 (b)(2) or the private trial court rule (“Trial Scheduling Order”) to family law trials (as opposed to motions or “special proceedings”) where the effect is to deny one party due process of law and essentially default them. Numerous opinions have approved the use of extraordinary writs where local rules have been challenged as violating procedural rights. Moreover, as the trial judge indicated on the record, this is his standard rule, so all litigants seeking a trial in that department, and in that county, are subjected to this “trial by written declaration” rule. “[W]here the trial court denies the fundamental right to a fair hearing, an extraordinary writ will be available to stop or correct the situation.”
	When the issue is of a grave nature or of significant legal impact, or to review questions of first impression and general importance to the bench and bar where general guidelines can be laid down for future cases, review by writ is also appropriate.

ABSENCE OF OTHER REMEDIES
	Since the relief sought by Petitioner is an order directed at the Superior Court to modify the application of its local rules and private “Trial Scheduling Order” so as to apply them in a way that does not violate the procedural due process of the litigants, appeal is an inadequate remedy.  

PRAYER
	Petitioner prays that this Court:
	1.	Issue a writ of mandate and/or prohibition commanding the Contra Costa County Superior Court to desist from applying either Local Rule 12.5 (b)(2) or Department 7’s “Trial Scheduling Order” in family law trials a manner that results in the denial of procedural due process to litigants. 
2.	Set aside the default Petitioner’s Order After Trial and order that Petitioner is entitled to a trial on the merits of his claims. 
3.	Stay the implementation of Petitioner’s Order After Trial pending the outcome of these proceedings.
4.	Grant such other relief as may be just and proper. 
Dated: November 7, 2005
						Respectfully submitted, 

						Garrett C. Dailey
							Attorney for Jeffrey Elkins

VERIFICATION

I, Jeffrey Elkins, declare as follows:
	I am the petitioner herein. I have read the foregoing Petition for Writ of Mandate/Prohibition and know of its contents. The facts alleged in the Petition are within my own knowledge and I know these facts to be true. 
	I declare under penalty of perjury that the foregoing is true and correct and that this verification was executed on November 7, 2005 at Oakland, California

____________________
Jeffrey Elkins

MEMORANDUM OF POINTS AND AUTHORITIES

STATEMENT OF THE CASE AND FACTS

	The parties were married on April 20, 1980 and separated July 27, 2001. They had one child, born in 1991. The issue of their date of separation had been bifurcated and tried separately. The issues for determination at the September 19, 2005 included:
•	The value and disposition of the family residence; 
•	Jeffrey’s right to reimbursement under Fam. Code §2640(b) for improvements done post-separation without Marilyn’s consent; 
•	The characterization and division of a multi-million dollar litigation settlement received by Jeffrey’s company, CalTech;
•	Jeffrey’s appropriate post-separation salary (separate property) compensation from CalTech for running the company and managing the litigation; 
•	The characterization and division of approximately $500,000 withdrawn by Jeffrey from community accounts prost-separation; and 
•	Marilyn’s request for attorney fees.

Contra Costa County Local Rules, Rule 12.5 provides for the conduct of “Hearings and Trials.” It provides, in part, as follows (emphasis added): 
“(b) Conduct of Evidentiary Hearings and Trials. …
	2. Except for good cause shown, documents which have not been made available for inspection by the opposing counsel or party five calendar days prior to the commencement of the hearing will not be received in evidence or used in the hearing. Alternatively, violation of this rule may result in a short continuance to provide the notice period and a sanction order which will reimburse the innocent party's increase in litigation costs produced by this rule's violation. (Rev. 01/01/01)
	3. Subject to legal objection, amendment, and cross-examination, all declarations shall be considered received in evidence at the hearing. Direct examination on factual matters shall not be permitted except in unusual circumstances or for proper rebuttal. The Court may decide contested issues on the basis of the pleadings submitted by the parties without live testimony.
	4. Moving and responsive pleadings shall be timely filed with the Clerk of the Court. All pleadings filed by either party (including, but not limited to, declaration, hearing briefs, trial briefs, points and authorities or written argument) shall be served on opposing parties and filed with the court no less than five (5) calendar days prior to the hearing. Except for good cause shown, the Court will hear no matter unless all pleadings have been timely filed and may exclude from its consideration untimely presented points and authorities, or other briefs or written argument. In cases in which responsive pleadings have not been timely filed, unless otherwise agreed to in writing executed by both parties or their counsel, the Court may, inter alia, permit the matter to proceed as a default, or may continue the matter and require the untimely party to pay the cost of the other party's appearance. Matters set on order shortening time are exempt from the strict enforcement of this rule, but reasonable promptness and notice is expected. (Rev. 01/01/01)
	5. The Court encourages the use of exhibits which summarize information contained in voluminous documents (e.g. admissible bank statements and exhibits which summarize complex financial matters (e. g. tax effects or proposed support orders).  However, such exhibits, together with copies of all documents on which they are based, shall be served on the opposing counsel or party at least five calendar days in advance of such hearing or alternatively handled as described in subsection 2, above. (Rev. 01/01/01)”

The Trial Scheduling Order issued April 22, 2005 containing many requirements, including, inter ala (emphasis added):  
“1. 	Unless otherwise approved in advance by the court, all direct testimony shall be in the form of declarations filed in lieu of direct testimony, subject to cross-examination.
2.	All exhibits to be introduced as trial shall be attached to, and explained in, the declarations. Any required evidentiary foundation for admission of the proposed exhibits shall be completely set forth in the declaration(s). Documents and exhibits to be used, in good faith, only for impeachment need not be submitted with the declarations.
3.	Initial declarations by each party and by any witnesses shall be filed and exchanged not later than ten (10) court days prior to trial, together with any trial briefs which any party wishes to submit. Failure to provide initial declarations may result in there being no direct testimony on that issue and issue sanctions may result. Failure to file a brief indicates to the court hat no cases are being relied on by that side. Failure to provide a declaration because a witness refused to sign it shall not excuse the filing of the unsigned declaration.
4.	Responsive declarations and exhibits, any objections to exhibits, and demands for production of any declarant for cross-examination shall be filed and served not later than five (5) court days prior to trial, together with any responsive trial briefs. For any witnesses not deposed or interviewed, a short statement of the expected testimony is required. …
8.	The parties will prepare a binder(s) containing all the exhibits they actually plan to use at trial. The exhibits will be consecutively marked and each page is to be bates stamped in consecutive order. Copies will be provided for each side, the witness, clerk and the court at least 2 court days before the trial.
OTHER ORDERS: Failure to comply with these requirements will constitute good cause to exclude evidence or testimony at trial and/or to make adverse inferences or findings of fact against the non-complying party.  Willful noncompliance may also be subject to imposition of monetary sanctions, and will be considered by the court in assessing and awarding attorney fees and costs.”
The Trial Scheduling Order did not contain a proof of service on Jeffrey, although no objection was made to this defect at trial. 
Pursuant to the Trial Scheduling Order, Marilyn filed her Declaration dated September 2, 2005 and her Trial Brief. Marilyn filed a Responsive Declaration on or about September 8, 2005 and a list of furniture and furnishings. She also filed a Declaration in support of her request for attorney fees.
Jeffrey also filed his Trial Brief and his Declaration on September 2, 2005 and had his binder of exhibits delivered to the Court and Marilyn’s counsel on the Friday before the Monday trial.
	The matter came on for a one-day trial on September 19, 2005. The trial began with the judge stating that he had not received a copy of Jeffrey’s declaration, filed September 2, 2005. The Court then stated, as follows: 
“The preliminary issue from my perspective is the Mr. Elkins did file an opening declaration, did not submit a second declaration, and then he served on my office on Friday a binder full of 37 exhibits, 36 of which were not in his declaration. So pursuant to the trial setting order, these should be excluded from evidence.”

	Jeffrey indicated his intention to cross-examine the 730 financial expert, Michael Eggers, and Marilyn. He estimated he would require one and one half hours for this. Jeffrey then gave the Court a copy of his September 2, 2005 declaration that was not in the Court’s file. Without adjourning to read it, the Court proceeded to argument on whether Jeffrey would be permitted to admit 34 of the 36 trial exhibits that he had marked and included in his binder. 
	Marilyn’s counsel argued:
“As to how long this is going to take, it depends on what Court’s order is going to be on the additional exhibits [the 34 not directly identified in Jeffrey’s declaration], because it’s my position that they’re not admissible and that since Mr. Elkins did not submit a second declaration if I don’t cross-examine him, which I would not do based on the declaration, he’s is not entitled to offer any further evidence. If that’s the case, then it will be Mr. Eggers being cross-examined, Ms. Elkins’ cross-examined, and that’s the only witnesses that are left.”
The matter then proceeded as follows: 
THE COURT: All right. So I’m now ready to proceed with the arguments. Let’s begin with the first matter on the agenda, which is Mr. Harkins’ objections, Mr. Elkins, to your exhibits that have no evidentiary foundation in your declaration. He’s objecting to the admission into evidence of those exhibits.
MR. ELKINS: Your Honor, I’m just going by the trial rules that we had when we went for a bifurcated trial earlier this year, and in that trial, we did nothing but present exhibits such as trial book until the day of trial.
THE COURT: No. No. You’re misunderstanding what his objection is. In order to get a document admitted into evidence under the trial scheduling order – if you take a look at it. It’s paragraph 2, I think it is – it says that the evidentiary basis and foundation for each exhibit must be set forth in the declaration so the at the other side can object to see, you know, if exhibits have an evidentiary basis or not.  And he’s saying that those exhibits don’t have any foundation in your declaration. [¶] So if you can point me to the foundations in your declarations, then we – we’ll dispose of that argument quickly If not, those – exhibits that don’t have an evidentiary foundation will be stricken.
MR. ELKINS: Well, your Honor, my – my declaration and trial brief basically get s to the heart of a couple of issues. And one is whether –
THE COURT: No. I understand that, but that – what it’s the heart of or what the issues present, that’s a different question. Right now you need to just focus on each exhibit and its evidentiary foundation. [¶] So to be more specific, Mr. Harkins, give the exhibit numbers in his binder that you’re objecting to, and we’ll start off with the first one.
MR. HARKINS: Well, frankly, your Honor, except for Exhibit 3 and Exhibit 12, none of them were provided in Mr. Elkins’ declaration.
THE COURT: Exhibits 3 through 12.
MR. HARKINS: No. 3 and 12 only. There were only three exhibits referenced in his declaration. One was the memorandum of understanding, one was a letter from myself.
THE COURT: So let me understand what you’re saying. You don’t object to Exhibit 3 and Exhibit 12. 
MR. HARKINS: Correct. 
THE COURT: But all the other exhibits, 1 through 37, you do object to.
MR. HARKINS: Yes. If I can – just so that I’m clear and the record’s clear, I’m objecting to those, first of all, as they were not included in any declaration. So based on the Court’s trial setting order, there’s no foundation, and they should be excluded…
THE COURT: All right. I understand. So let’s give a typical example of what I’m talking about with foundation, Mr. Elkins. Take a look at your Exhibit  Number 5 as an example. 
MR. ELKINS: uh-huh.
THE COURT: Exhibit Number 5 which you’ve numbered 115 – it’s 115 on the bottom –
MR. ELKINS: Right.
THE COURT: -- is not referred to in your declaration. So there’s no way of knowing what this document is without any testimony – direct testimony saying what this is or what it purports to be. 
MR. ELKINS: Your Honor, you have my copy of my declaration, so I can’t –
THE COURT: I do have it. I do have it. I can’t refer to it unless I see it. All right. … I’m going to return your copy back to you. …
MR. ELKINS: In paragraph 4 of my declaration –
THE COURT: All right.
MR. ELKINS:  -- it refers to an accounting given to my wife – given by my wife to me, and this document is in relation to that. And, in fact, this document was presented by Ms. Tammy Gallerani when she was representing me as a document cache for completing this trial.
THE COURT: I understand that. I’ve reviewed your declaration. Tentatively, I am going to rule in favor of Mr. Harkins. I’m going to allow you at one of the breaks that we have so as not to disrupt the flow right now to rethink your argument and give me specific evidentiary foundations for these documents, but I don’t see it in your declaration. Particularly, the one we were specifically talking about, Exhibit 5, I don’t see any specific reference to it in your declaration. There’s a general reference to a general category.
MR. ELKINS: Your Honor, there are no specific references in any document. …
THE COURT: There’s a general reference, and under that general category, arguably, every document that’s ever been field in this case would be generally referred to, but what’s required under the trial scheduling order are the specific evidentiary foundations so that I can rule on them. [¶] There being no evidentiary support for Exhibits 1 through 37, with the exception of Exhibit 3 and 12, the objections will be sustained tentatively subject to further argument after the morning break. 
MR. ELKINS: Your Honor, I request a statement of decision. 
THE COURT: Yes. Like the last time, I will deliver my decision right promptly following the conclusion of the trial. 
 MR. ELKINS: And, you Honor, my only statement regarding this is that I’m operating by the same trial rules and under the same circumstances the we operated when we held trial here on February 10th, 2005.
THE COURT: It’s the identical trial scheduling order and rule as far as I can tell….
Mr. ELKINS: And operating under those identical rules when I presented exhibits, they were all accepted. 
THE COURT: All right. So the next item on the agenda then, Mr. Harkins, is what are you offering first into evidence since you’re the petitioner…”
Marilyn then objected to Jeffrey’s proposed Order, as follows: 
“MR. HARKINS: And as to Mr. Elkins’ proposed order, it’s not submitted timely. Part of the problem that we have here is there is a trial setting order that applies to both parties. Ms. Elkins has complied with it. Mr. Elkins has not. He did not submit – we’ve already discussed the exhibits in the declaration. In fact, he presented them to my office Friday afternoon – Friday just before trial. The order was to be submitted two court days before trial, which I did. Mr. Elkins is bringing it with him. The trial setting order is clear. Mr. Elkins is just simply not complying with it.” 
The trial then commenced by Marilyn’s declarations and exhibits being admitted into evidence. With essentially all of exhibits excluded, Jeffrey simply gave up and rested: “The respondent rests completely, your Honor.” Since he was denied the use of the evidence to cross-examine the forensic expert, he withdrew his request to cross-examine him as well. 
	Marilyn then rested as well. The entire “trial” of these complex issues takes three (3) pages in Reporter’s Transcript. 
	Jeffrey explained his decision to the trial judge as follows:
“MR. ELKINS: … My concern is that I came into the trial with the intent of presenting my position, and I’m being cut out of that completely with only reliance on two exhibits which are – no way can defend my position. So I might as well give up my position and leave it to the best well-being of my family.”
THE COURT: Well, that may be the correct advice….
MR. ELKINS: Your Honor, if you take a spreadsheet and add up and deduct everything that Mr. Harkins is asking for, I am left with nothing. Zero dollars. Zero house. Zero car. Nothing. So what’s the difference?
THE COURT: All right. Well, I’m going to take the case under submission, and I will rule on the matter….”
On October 3, 2005, the trial court scratched out the word “proposed” in “Petitioner’s Proposed Order After Trial” and it became the order of the Court, including every penny of the $15,0000 attorney fee order requested by Marilyn and despite the fact that Jeffrey was not employed and Marilyn was getting virtually 100% of the liquid assets. 
	The Court issued its Order without issuing the Statement of Decision requested by Jeffrey prior to submission of the matter and acknowledged by the Court. Thus, reversal will be required in any event.
LOCAL RULES MAY NOT PREEMPT STATUTORY LAW
	The Contra Costa County Superior Court Local Rules are adopted pursuant to Govt. Code §68070, which authorizes: “Every court may make rules for its own government and the government of its officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council.” To the extent that the local rules do conflict, they are void.
Code of Civil Procedure §575.1 (c) permits individual judges to adopt rules for their individual courtrooms, provided the rules are published “as part of the general publication of rules required by the California Rules of Court.” The rules contained in the Trial Scheduling Order are not published. 
Numerous opinions have discussed the need for local rules and procedures to balance the need for efficiency with the need to preserve both the fact and appearance of due process: 
“We realize that the demands made on busy trial judges approach, if they do not already exceed, the unrealistic. … [¶] It is thus no surprise that, in their need for efficiency, trial judges have adopted procedures to streamline litigation. Most of these procedures have beneficial effects, causing disputes to be resolved more quickly and more efficiently without sacrificing the ultimate goal of the judicial process: the delivery of just results. But, in adopting these new, efficient procedures, judges must remember another, equally important goal: preserving a process that not only is just, but also appears to be just. In spite of the need for efficiency, courts should not lose sight of the need that parties be given their ‘day in court.’ [¶] The concept of parties being given their day in court has real as well as symbolic meanings.” 

In Lammers v. Superior Court, the Court of Appeal held the San Diego local pre-read rule, unconstitutional as applied: 

“Given the staggering number of cases that judges assigned to domestic relations law and motion calendars in busy metropolitan courts must hear and decide, superior courts have been compelled to adopt processes designed to expedite hearings on motions and OSC's and to conserve finite judicial resources, while endeavoring to preserve the right to a full and fair hearing for the parties. However, whether the court-imposed process is the use of declarations and affidavits instead of live testimony (Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 485), the requirement to "meet and confer", advance notification of settlement or continuance, mandatory confirmation of a scheduled proceeding 48 hours in advance, or imposing time limitations on oral argument, a measure implemented for the sake of efficiency cannot jeopardize the constitutional integrity of the judicial process. In other words, court congestion and ‘the press of business’ will not justify depriving parties of fundamental rights and a full and fair opportunity to present all competent and material evidence relevant to the matter to be adjudicated.”

The opinion continued: 

"[A] measure implemented for the sake of efficiency cannot jeopardize the constitutional integrity of the judicial process. In other words, court congestion and 'the press of business' will not justify depriving parties of fundamental rights and a full and fair opportunity to present all competent and material evidence relevant to the matter to be adjudicated."

Let’s be clear about the nature of the proceeding below wherein Jeffrey was not permitted to introduce 34 of his proffered 36 exhibits – it was not a “motion,” or a “hearing.” It was the trial of the parties’ substantive property rights. Hundreds of thousands of dollars changed hands in this three-page trial. The reason that his evidence was excluded was not that it was inadmissible, as much of it obviously was obviously admissible on its face. The reason was not that there was unfair surprise – the binder had been delivered to Marilyn’s attorney three calendar days earlier. The reason was not that the trial court had not had an opportunity to read it – Jeffrey’s declaration, filed 10 days earlier had not even been read by the judge at the start of the trial. The judge “read” Jeffrey’s declaration while the trial was going on between RT page 5/25 and page 9/26, with no recess. The reason for excluding virtually all of Jeffrey’s evidence and practically mandating that the matter proceed by default was solely his failure to comply literally with this judge’s private rule for expediting trials by by-passing the procedures set forth in the Evidence Code, Rules of Court and Code of Civil Procedure. 
	Evid. Code §772 provides that the examination phases of a witness are as follows: 
"(a) The examination of a witness shall proceed in the following phases: direct examination, cross-examination, redirect examination, recross-examination, and continuing thereafter by redirect and recross-examination.
     (b) Unless for good cause the court otherwise directs, each phase of the examination of a witness must be concluded before the succeeding phase begins.
     (c) Subject to subdivision (d), a party may, in the discretion of the court, interrupt his cross-examination, redirect examination, or recross-examination of a witness, in order to examine the witness upon a matter not within the scope of a previous examination of the witness…." 

	Pursuant to this local rule and this judge’s private rule, no direct examination of a witness is permitted. This not only violates all accepted notions of what constitutes a “trial” it totally negates one of the key reasons that courts of appeal defer to trial courts on findings of fact, namely they are the ones who “look the witness in the eye” and judge their credibility. Evid. Code §780 provides that judging credibility is one of the functions of the trier of fact: 
“Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:
(a) His demeanor while testifying and the manner in which he testifies.
(b) The character of his testimony.
(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.
(d) The extent of his opportunity to perceive any matter about which he testifies.
(e) His character for honesty or veracity or their opposites.
(f) The existence or nonexistence of a bias, interest, or other motive.
(g) A statement previously made by him that is consistent with his testimony at the hearing.
(h) A statement made by him that is inconsistent with any part of his testimony at the hearing.
(i) The existence or nonexistence of any fact testified to by him.
(j) His attitude toward the action in which he testifies or toward the giving of testimony.
(k) His admission of untruthfulness.”
	In this case, because of the trial court’s private rule, neither party testified, yet the trial judge was required to make and did make credibility determinations when weighing the evidence presented. It granted 100% of the relief Marilyn requested without ever hearing a word from her.  How does one weigh credibility from a declaration, undoubtedly written by the party’s attorney? 
	While it is true that more routine matters such as motions and orders to show cause are routinely “Reiflerized,” and heard by declaration, subject to cross-examination, this procedure has never been approved for the ultimate trial.
	Reifler involved a complicated series of post-trial motions regarding spousal and child support. Both parties submitted declarations, then estimated that hearing would take three days. The trial court indicated its intention to limit them to one day or require matter to be submitted on moving papers, citing an informal local procedure. The wife objected, stating that she needed to cross-examine her former husband on secreted assets. Her request for a writ of mandate was granted. The Court of Appeal held that trial court had discretion to exclude oral testimony for all matters except the wife’s OSC re contempt. A local policy excluding oral testimony is acceptable, as long as it is not substitute for the judge's discretion to admit it if appropriate.
"With the exception of the order to show cause re contempt, the trial court was vested with discretion to allow or exclude oral testimony in amplification or impeachment of the declarations filed by the parties."

	Numerous courts have approved Reiflerized motions. In Marriage of Biderman a motion to modify permanent spousal support order was held to have properly been heard on declarations and documentary evidence: "A trial court has discretion to permit or exclude live-witness testimony in deciding post-judgment family law motions and orders to show cause."
Jeffrey does not dispute that motions may heard on declaration, after all this is expressly permitted by statute and Rule of Court. Cal. Rules of Court, rule 323 (a) provides: 
"Evidence received at a law and motion hearing must be by declaration, affidavit, or request for judicial notice without testimony or cross-examination, except as allowed in the court's discretion for good cause shown."

Code Civ. Proc. §2009 extends this rule to “special proceedings”:
“An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or upon a motion, and in any other case expressly permitted by statute.”

	In our, case, this was not a motion or “special proceeding.” It was the trial. Jeffrey is unaware of any rule or case that permits trials to be heard on declaration and for the evidentiary foundation for documentary evidence to have to be established in a declaration filed ten court days before trial or be excluded. 

BOTH THE LOCAL RULE AND PRIVATE TRIAL COURT RULE VIOLATED PROCEDURAL DUE PROCESS EITHER FACIALLY OR AS APPLIED TO JEFFREY

	Jeffrey believes that a local rule requiring “trial by declaration” is the antithesis of what we know and think of as being a “trial,” which is a forum where the trier of fact listens to the testimony, looks the parties in the their eyes, and weighs credibility and then determines the truth. Instead, the Local Rule and Private Rule elevate form over truth and place a premium on the skill of the attorney in drafting the declaration, rather than the credibility of the witness in testifying as to the facts. To argue that the right to cross-examine cures this is not true. Here, for example, Marliyn’s attorney specifically stated to the Court that it was not going to call Jeffrey on cross-examination, thereby keeping him off the stand completely. In other words, due to the application of these rules, Jeffrey was not going to get to testify in his own trial! 
“It is a cardinal principle of our jurisprudence that a party should not be bound or concluded by a judgment unless he has had his day in court. This means that a party must be duly cited to appear and afforded an opportunity to be heard and to offer evidence at such hearing in support of his contentions.”

       Procedural due process requires both notice and the opportunity to be heard. These rules deprived Jeffrey of his right to be heard in violation of the Fourteenth Amendment to the constitution, which provides that no State shall “deprive any person of life, liberty, or property, without due process of law.” Trial by declaration is not a “trial” as we know it – especially when the parties don’t even get the right to testify! In fact, Rule 12.5 (b)(3) specifically permits this, even in trials: “The Court may decide contested issues on the basis of the pleadings submitted by the parties without live testimony.”
“[W]hen an enactment broadly and directly impinges upon the fundamental constitutional rights of a substantial portion of those individuals to whom it applies, it can be upheld only if, considering its general and normal application, its compelling justifications outweigh its impingement upon constitutional rights and cannot be accomplished by less intrusive means.”

Since the application of these rules “inevitably pose a present total and fatal conflict with applicable constitutional prohibitions,” to every litigant in the county, they should be held to violate substantive due process.
The rules often place an unreasonable burden on litigants. In complex cases, where the entire case on direct must be laid out in a declaration and no additional direct evidence is permitted, declarations are often excruciatingly long with the attachments delivered in banker’s boxes. To expect the trial judges to read these long declarations and review the exhibits is unrealistic. The purpose is as much to place obstacles between the litigants and trial hoping to force settlement as it is to streamline the presentation of evidence. When a rule is “onerous [or] cumbersome” and places "’burdensome hoops’" upon any party seeking a meaningful opportunity to be heard before the court”, it will be held to violate due process.
Even if the “trial by declaration” rules are deemed to be substantively permissible, they can still violate procedural due process as applied to an individual. 
“Although an enactment is held to be facially constitutional, it may have nevertheless been unconstitutionally applied as to a specific individual under particular circumstances, depriving that person of a protected right, such as a meaningful opportunity to be heard.”

	In Lammers, as here, Jeffrey’s  “private interest in having a meaningful hearing and all that that right encompasses outweighs any state interest in conserving and allocating finite judicial resources in an efficient and expedient manner.” 
Because of the application of these rules, Jeffrey was not permitted to introduce the exhibits that he needed to defend himself and present his position. As the trial judge recognized, the result was Jeffrey’s default. Despite there being no prejudice to Marilyn or to the Court, Jeffrey was not permitted to present his case. It simply cannot be argued that he was accorded procedural due process or fundamental fairness. 

MARILYN SUFFERED NO PREJUDICE AND A RULING DEPRIVING JEFFREY
 OF HIS RIGHT TO PRESENT HIS CASE WAS BOTH AN ABUSE OF DISCRETION
AND DENIED HIM PROCEDURAL DUE PROCESS

	As noted above, Jeffrey delivered his binder of exhibits to Marilyn’s attorney the Friday before a Monday trial. She did not make any specific objections to any exhibits, although she reserved her right to do so. She did not allege that she was prejudiced by the failure to deliver them on Thursday. Instead she objected that the private trial court rule had not be literally complied with and moved that all exhibits save two be stricken.  The motion was granted and the trial went by default. This not only denied Jeffrey due process, it leaves a very sour taste in one’s mouth about how justice was administered. Jeffrey lost his day in court for the literal to comply literally with a very complex local private rule. He did not ignore the Trial Scheduling Order. He thought that he was complying with it as he had in the earlier bifurcated trial on date of separation. 
It should not require citation to authority to state the obvious, namely: “Sanctions which have the effect of granting judgment to the other party on purely procedural grounds are disfavored.”
	Kalivas v. Barry Controls Corp. reversed a trial court order granting a summary judgment motion because the party opposing the motion, having been misled by an unauthorized local courtroom rule, had filed no written opposition papers. The Court of Appeal emphasized the procedural error was a "curable defect" from which the party moving for summary judgment suffered no prejudice. Accordingly, the Kalivas court concluded the trial court's order was an abuse of discretion: 
"An order based upon a curable procedural defect (such as the failure to file a separate statement), which effectively results in a judgment against a party, is an abuse of discretion."

Likewise in Sec. Pac. Nat'l Bank v. Bradley,summary judgment was granted in favor of respondent on the sole ground that appellant failed to file a separate responsive statement pursuant to Civ. Proc. Code §437c (b). The court of appeal reversed, holding that the trial court abused its discretion because under the particular circumstances of the case, it exceeded all bounds of reason. The grant of summary judgment on the basis of the procedural error was equivalent to a sanction terminating the action in favor of the respondent. Judging the trial court's actions by standards applicable to terminating sanctions, the trial court was in error because there was no showing that appellant willfully refused to comply with the statute, or that appellant had previously violated any court rules, or that appellant's actions were prejudicial to respondent. 
“The abuse of discretion lies in the trial court's failure to give Bradley a further opportunity to file a separate responsive statement. ‘”Discretion is abused whenever ... the court exceeds the bounds of reason, all of the circumstances before it being considered.”’  When the opposing party fails to file a separate responsive statement the trial court is presented with two choices. It can grant the motion for summary judgment based on the absence of the separate statement or it can continue the motion or otherwise permit the filing of a proper separate statement.) Whichever choice the court makes must be based on the circumstances before the court. ‘A trial court's exercise of discretion will be upheld if it is based on a “reasoned judgment” and complies with the “... legal principles and policies appropriate to the particular matter at issue.”’ As we explain below, in this case there were no circumstances which gave the trial court reason to grant the motion based solely on the absence of a separate responsive statement and the court's order was contrary to the appropriate legal principles and policies. On the other hand, there were numerous circumstances and policies which gave reason to afford Bradley an opportunity to file a proper responsive statement.”

	Here, the trial was set for one full day. The only witness besides the parties was the court-appointed expert. The trial court could have permitted Jeffrey to try to make his case in the one day allotted and then sanction him if the failure to comply with the local rules required additional trial time. It could have given Marilyn a continuance, had she requested one, which she did not. There were a host of options other than terminating sanctions, which was what the Court ordered. This was, at worse, a “curable defect.” Termination was not the appropriate sanction. Yet, a terminating sanction is specifically authorized both by local rule and the private trial court rule.
Moreover, Jeffrey represented that he had proceeded in this method in the parties’ earlier bifurcated trial on date of separation without difficulty. If that were true, and presumably it is, the trial court’s private rule was not being evenly applied, making its application in this situation even more egregious. 

SOME OF THE TRIAL JUDGE’S PRIVATE RULES CONFLICT 
WITH THE PUBLISHED CONTRA COSTA COUNTY LOCAL RULES

	The private trial court rules conflict with the published Contra Costa County Local Rules for “Hearings and Trials”: 
	Local Rule 12.5 (b)(2) requires that documents must be shown to the opposing side five (5) calendar days before trial or a short continuance is permitted. The trial court’s private rule requires that the documents be identified in and attached to a declaration ten  (10) court days prior trial and shown to the opposing party two (2) court days before trial. (This in and of itself is confusing and contradictory.) 
Local Rule 12.5 (b)(2) simply requires that documents be shown to the other side to be admissible. The Trial Scheduling Order went far beyond that and provided that the”[f]ailure to comply with these requirements will constitute good cause to exclude evidence or testimony at trial and/or to make adverse inferences or findings of fact against the non-complying party.”
Local Rule 12.5 (b)(4) requires that all moving and responsive pleadings shall be “timely filed” no less than five (5) calendar days prior to the hearing. The trial court’s private order provides that declarations/trial briefs must be filed ten (10) court days and responsive declarations five  (5) court days before trial. 
Thus Jeffrey could have been in compliance with the published local rules and still have had his evidence excluded pursuant to the contradictory private trial court rules. Jeffrey could also have attached the exhibits to his declaration ten court days before trial yet failed to provide a binder containing the exact same exhibits (since all had to be attached to the original declaration) and been defaulted as in violation of the private trial court rules.
	While Jeffrey does not concede that the Contra Costa County Local Rules can be forced on litigants who prefer to present their direct evidence in the trial-in-chief (as opposed to ancillary motions or hearings) in a manner other than permitted by the Evidence Code, he nevertheless contends that a local trial court judge cannot privately promulgate procedural rules, the failure to comply with which results in essentially the taking of one’s default, especially when those rules conflict with the published local rules of the county and are unsupported by the Rules of Court or statutory law.
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A REVIEW OF JEFFREY’S PROFFERED EXHIBITS SHOW THAT MOST OF THEM WOULD HAVE BEEN ADMITTED AND THE FAILURE OF THE TRIAL COURT TO EXERCISE DISCRETION MANDATES REVERSAL

	Jeffrey’s exhibits were excluded not because they were inadmissible as a matter of law – they were excluded because he failed to follow precisely a local and/or private judge made rule, not because there was anything inherently wrong with the evidence he proffered or because he did not act in good faith. 
Evid. Code §351 provides: "Except as otherwise provided by statute, all relevant evidence is admissible." Here, Jeffrey’s evidence was excluded, not because it was irrelevant or inadmissible under the Evidence Code – only because he had not literally complied with a trial judge’s private rule. 
For example, his exhibits 4, 6 and 7 are emails from Marilyn. Exhibits 8 and 11 are transcripts of depositions of Marilyn. Exhibits 2, 5 and 9 are lists of transactions respecting community property and affecting the division. Exhibit 12 is the 730 appraiser’s report. Exhibit 13 is a bank transfer form signed by Jeffrey. Exhibits 14 to 20 were documents to be used in cross-examining Mr. Eggers. Exhibits 21, 23, 24-35 all were directly related to the CalTech lawsuit and Jeffrey’s reasonable compensation for managing it. Exhibit 36 was a receipt for work that he did in the residence and for which he sought Fam. Code §2640 (b) reimbursement. 
While we will never know if Jeffrey would have been able to lay the foundation for all of the documents to be admitted into evidence, many would have come in automatically. 
Instead of exercising discretion as to which documents could come into evidence, the trial judge refused to exercise discretion and simply excluded all of them, including communications from and depositions of the party opponent. The failure to exercise discretion is as reversible as is the improper exercise of it.
CONCLUSION
	Jeffrey does not dispute the trial court’s right to make local rules to expedite the proceedings before it. However, the manner in which these rules were applied in this case, both the published local rules and the unpublished, contradictory trial court “trial by declaration” rule, denied Jeffrey due process and resulted in a taking of his property by default. The trial court should be directed to modify its published and private rules so that their application, when there has been no intention to intentionally violate them, does not 

result in a default.  
Dated: November 7, 2005
						Respectfully submitted, 

						Garrett C. Dailey
						Attorney for Jeffrey Elkins

Certificate of Compliance
I, Garrett C. Dailey, attorney for Petitioner Jeffrey Elkins, hereby certify that, pursuant to Cal. Rules of Court, rule 14(c)(1), this brief contains approximately 8,400 words, including footnotes, as computed by the Microsoft Word98 word counter. 
_______________
							Garrett C. Dailey