2015 Case Highlights: the Year in Review
| Publication year | 2016 |
During the past year, significant new cases were decided that affect family law. The United States Supreme Court, the California Supreme Court, the appellate courts, and the Ninth Circuit Court of Appeals issued such important decisions during the past year.
The continuing collaboration between Continuing Education of the Bar (CEB) and the Family Law Section continues to reap benefits for our members. The Family Law News is pleased to once again publish the CEB Year in Review. Each year, CEB publishes a detailed compilation of important case law and legislative developments on issues ranging from attorneys fees to child custody to enforcement.
Reprinted below for your review and easy reference are some of the key rulings during late 2014 and 2015. Except as indicated otherwise, all cases are final.
Confidential Communications
Edwards Wildman Palmer LLP v. Superior Court, 231 Cal. App. 4th 1214 (2014)
The "fiduciary" and "current client" attorney-client privilege exceptions are not recognized in California; instead, intrafirm communications about potential ethics violations and malpractice claims involving a current client may be covered by the attorney-client privilege.
An attorney and her client had almost immediate difficulties in a representation involving a claim for invasion of privacy against a newspaper. The client claimed there were inadequate budget estimates, as well as excessive billing and lack of communication. Nevertheless, for a short period the client did continue the attorney-client relationship. After a particularly critical e-mail, the attorney sought advice about the potential ethics violations and malpractice claims from the firm's general counsel and claims counsel. They in turn designated another firm attorney to supervise the work done for the client. None of the consulting attorneys billed the client for any of their work. The client eventually sued the firm and sought documents that the firm withheld as protected by the attorney-client privilege. The now-former client objected, arguing that the "fiduciary" and "current client" attorney-client privilege exceptions applied to make the documents discoverable. The trial court agreed and granted a motion to compel the discovery sought. The law firm petitioned for a writ of mandate.
The court of appeal granted the petition for a writ of mandate, in part, ordering the trial court to vacate its order compelling discovery insofar as it related to certain communications. It explained that some federal and other state courts have crafted the "fiduciary" and "current client" attorney-client privilege exceptions to handle "an impermissible conflict of interest" between a current, outside, disgruntled client and his or her attorney. In addition, some courts have held that the attorney-client privilege must be subordinated to a firm's ethical and fiduciary duties to a client. But in California, the court reasoned, all evidentiary privileges are strictly legislative creations. California courts are prohibited from adding to the statutory privileges, except when required by state or federal constitutional law. Further, courts may not imply unwritten exceptions to existing statutory privileges. So, the fiduciary and current client attorney-client privilege exceptions do not apply in California to require disclosure of the documents.
The appellate court then reviewed whether a valid attorney-client relationship existed in this context. The court suggested that the intrafirm communications with the designated general counsel and claims counsel did represent a valid attorney-client relationship, particularly because the attorneys did not bill the client for their time. The supervising attorney, however, was a closer call, particularly because the firm had not previously designated him (formally or informally) to deal with thorny ethical issues on behalf of the firm. The court noted that the parties had not briefed whether the firm had made a sufficient showing of an existing, valid attorney-client relationship. The appellate court remanded the case to the trial court, vacating the order compelling disclosure of potentially attorney-client privileged documents.
[Page 7]
Reference: See Practice Under the California Family Code: Dissolution, Legal Separation, Nullity §23.20 (Cal. CEB).
Post-judgment Award
Marriage of M.A. & M.A., 234 Cal. App. 4th 894 (2015)
A trial court did not abuse its discretion in awarding a mother attorney fees when it properly considered the parties' respective income, assets, and expenses and only awarded the mother one-third of the fees she actually incurred based on the parties' financial disparity.
After the California Department of Child Support Services began enforcing child support provisions of a dissolution judgment, a father filed a motion to modify the support obligation and requested an order to show cause why the obligation should not be eliminated. The mother, in turn, requested a determination of child support arrears. The father and mother also filed requests for sanctions against one another during the course of the litigation. At a later hearing, the court awarded the mother $6500 in attorney fees under Cal. Fam. Code §2030(a), approximately one-third the amount of fees she actually incurred. The father appealed, arguing that the mother enjoyed a better financial condition and had a greater percentage of parenting time.
The court of appeal affirmed. The court noted that, in determining whether to award attorney fees under Cal. Fam. Code §2030, a court must consider the parties' respective needs and incomes, but is not limited to considering the parties' salaries only. The court may also consider any other evidence of the parties' assets, abilities, and expenses. The court further noted that an attorney fee award will not be disturbed absent a clear showing of abuse.
In this case, there was sufficient evidence that the trial court considered the parties' relative incomes, assets, and expenses. In addition, the trial court only awarded the mother one-third of the fees she actually incurred, which suggested the court's active role in considering the parties' respective abilities to fund the litigation. Thus, the trial court did not abuse its discretion in awarding the mother attorney fees.
Reference: Practice Under the California Family Code: Dissolution, Legal Separation, Nullity §9.2 (Cal. CEB).
Custody Evaluation
Leslie O. v Superior Court, 231 Cal. App. 4th 1191 (2014)
A trial court erred in failing to remove a child custody evaluator and to strike her evaluations when the evaluator's conduct demonstrated a clear bias against a child's mother.
During divorce proceedings, a trial court appointed a child custody evaluator to investigate and report on the custody of a child with special needs. In her initial report, the evaluator included several references to the mother's mental health, including a suggestion that the mother suffered from a particular mental illness, but did not include her therapist's statement that the mother did not have a mental illness. The report also cited an incident in which the mother struck the father, but omitted the fact that the mother had shoved the father after he had first become physically and verbally aggressive.
With respect to an incident in which the child injured himself in a bicycle accident while under the father's care, the report included quotes from a neighbor who considered the father to be extremely loving and attentive and who believed the mother to be controlling and unfriendly. However, the evaluator did not interview the child's pediatrician, who was very critical of the father's care. In particular, the pediatrician believed that the father was extremely inattentive, because the child had suffered three similar accidents under the father's supervision before the incident in question.
After receiving several complaints from the mother's therapist and pediatrician regarding errors and omissions in the evaluator's report, the evaluator e-mailed the parties' attorneys, instructing them to persuade the mother to refrain from sharing the "confidential report with whomever she chooses." The evaluator subsequently e-mailed the father's attorney alone, stating that she had already reported the mother's alleged breach of confidentiality to the trial court. The evaluator also exchanged several e-mails with the father, in which she expressed sympathy for the father's difficulties during the litigation, suggested that she was on the father's side, and advised him to find new representation if his attorney was not performing up to standard. After deposing the evaluator and subpoenaing files containing these e-mails, the mother filed an ex parte application to remove the evaluator and to strike her evaluations. The trial court denied the motion, finding that there was insufficient evidence of bias. The mother filed a petition for writ of mandate.
[Page 8]
The court of appeal issued the writ, finding that the evidence clearly demonstrated the evaluator's bias against the mother. The court cited numerous errors and the selective omission of information that might be detrimental to the father in the initial evaluation. The court also found that the evaluator stepped beyond the scope of her position when she allegedly reported the mother's breach of confidentiality to the trial court, in violation of both Cal. Fam. Code §216 and Cal. Rules of Ct. Rule §5.235(c)'s prohibitions on ex parte communications. The court further found that the evaluator's e-mails with the father, in which the evaluator advised him regarding his case and expressed sympathy with his frustrations, demonstrated a clear bias for the father and against the mother. Thus, the court concluded, it was error to not remove the evaluator and to strike her evaluations from the record.
Reference: Practice Under the California Family Code...
To continue reading
Request your trial