2015 Case Highlights: the Year in Review Continued

• Jurisdiction: California,United States
• Publication year: 2016
• Citation: Vol. 38 No. 3

2015 Case Highlights: The Year in Review Continued

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.

In the last Issue, we re-printed for you the key rulings in the areas of Attorney fees, custody/visitation, child support, and community property. In this Issue, we are re-publishing, for your review and easy reference, the remainder of the key rulings during late 2014 and 2015. Except as indicated otherwise, all cases are final.

Discovery

Motion to Quash

Evilsizor v Sweeney, 230 Cal. App. 4th 1304 (2014)

The failure to timely withdraw a motion to quash a subpoena after the party requesting the subpoena has amended it in a manner that renders the motion unnecessary may constitute sanctionable conduct under California Civil Procedure Code section 1987.2.

During dissolution proceedings, a husband issued a subpoena to his wife's bank requesting records relating to her banking and credit card accounts. The husband was unaware that the wife's father had an interest in the accounts and that the records contained some of his financial information. After becoming aware of the subpoena, the father-in-law filed a motion to quash. The husband later sent the father-in-law a letter stating that he would amend the subpoena and that he would pursue sanctions if the father-in-law did not withdraw the motion. The husband then sent an amended subpoena to the bank instructing the bank to exclude any information relating to the father-in-law. The husband also served a copy of the amended subpoena on the father-in-law's attorneys. The father-in-law did not withdraw the motion, however, until after the husband had filed a response to the motion to quash. The husband then requested that the trial court focus on the issue of sanctions. The father-in-law opposed the request, stating that his motion was not made in bad faith. The trial court granted the sanctions and the father-in-law appealed.

The First District affirmed, holding that the failure to timely withdraw the motion was without substantial justification. The court reasoned that California Civil Procedure Code section 1987.2 authorizes sanctions not only for bad faith conduct, but also for conduct made without substantial justification. Here, the court found that the husband's amended subpoena rendered the motion unnecessary. Thus, the trial court was within its discretion in finding that the father-in-law lacked a substantial justification for failing to withdraw the subpoena until after the opposition had been filed.

Reference: Practice Under the California Family Code: Dissolution, Legal Separation, Nullity §13.43A (Cal. C.E.B.).

Domestic Violence

Restraining Orders

Altafulla v Ervin, 238 Cal. App. 4th 571 (2015)

An e-mail campaign meant to harass, embarrass, and annoy an unfaithful female domestic partner and a campaign to cause her two daughters traumatic emotional distress constituted "abuse" under the Domestic Violence Prevention Act (DVPA) and provided sufficient evid ence to support a domestic violence restraining order.

A man who had been living with his unmarried cohabitant (referred to by the court as a domestic partner) received a surveillance report from an unknown party showing that his domestic partner had been unfaithful to him (which she never expressly denied). He sent a barrage of e-mails to their mutual friends, relatives, and coworkers, attaching the report and explaining how he had been victimized. He also told his partner's two daughters (ages seventeen and nine) in sexually explicit terms that their mother had engaged in oral copulation with another man, and that they could contract sexually transmitted diseases from her by using the same towels as their mother.

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In addition, the man refused to let his partner into their bedroom and after police arrived in response to her call, he began to disassemble her children's bedroom furniture, saying alternate sleeping arrangements were necessary. The seventeen-year-old daughter, who was emotionally traumatized, fled to a psychiatric facility. That facility refused to allow the daughter to return to the home until the man. His partner successfully obtained a restraining order under the Domestic Violence Prevention Act (California Family Code sections 6200-6409) (DVPA). The court, in issuing a five-year restraining order, also considered a threat the man had made to his former wife and three daughters that he would someday "take a gun and shoot all four of you" as evidence of his appalling lack of judgment and self-control. The court denied the man's request for a restraining order against his partner, and he appealed.

The Fourth District affirmed the order. It held that there sufficient evidence to support the court's issuance of a five-year DVPA restraining order. Even though the female partner (and victim in this case) implicitly admitted to her affair, and despite her former partner's assertion that his e-mails and statements to the children were actually true, his e-mails and statements did harass, and were arguably calculated to harass, his victims and constituted abuse under the DVPA. The court reasoned that even arguably accurate information may be used to cause severe emotional distress, as illustrated by the effect of the male partner's statements and actions on his former partner's seventeen-year-old daughter. Simply destroying the mental peace of a victim is sufficient to show abuse under the DVPA. (See California Family Code section 6320.)

In addition, the male partner's appalling statement to his former wife and children at least relevant in determining if his current partner and her children needed protection from him, even if he arguably did not mean it as a death threat. The appellate court said that, "taken together, this history of abusive and outrageous conduct was more than sufficient to support intervention by the trial court" in issuing a DVPA restraining order.

Finally, although the victim in this case had initially applied for a three-year restraining order, there was no abuse of discretion in the trial court's granting a five-year order when the victim asked for the longer order at the hearing. Apart from other factors, the male partner could seek relief on a showing that the restraining order is no longer necessary.

Reference: Practice Under the California Family Code: Dissolution, Legal Separation, Nullity §11.6 (Cal. C.E.B.). Faton v Ahmedo, 236 Cal. App. 4th 1160 (2015)

Even though a woman seeking a domestic violence restraining order did not check the Judicial Council form box to request attorney fees, the court properly awarded her fees after entry of judgment in her favor and after her former boyfriend had a full and fair opportunity to be heard and contest the award.

After a man and a woman had dated for approximately two years and had periodically lived with one another, the now-former girlfriend sought a domestic violence restraining order (DVRO). She used a standard Judicial Council Form DV-100 to petition for an order but failed to request attorney fees. The former boyfriend responded to the petition by filing Judicial Council Form DV-130, and also petitioned for a restraining order against the former girlfriend. He similarly failed to check the box to request attorney fees. The court granted the former girlfriend's DVRO for one year, but denied the former boyfriend's request as retaliatory.

Both parties then hired counsel and the former boyfriend filed a request for reconsideration. The court granted the reconsideration request and at that hearing, again granted the former girlfriend's DVRO request for a period of one year. Again, she did not check the box for attorney fees. The former girlfriend then filed a motion for attorney fees. Ultimately, she requested attorney fees in the amount of $12,655, providing supporting evidence and declarations, which the former boyfriend contested. The court awarded the former girlfriend $5000 in attorney fees as the prevailing party and the former boyfriend timely appealed.

The Fourth District affirmed. The essence of the former boyfriend's opposition was that his former girlfriend did not check the box to request attorney fees on either form petition for a DVRO. He argued that she had forfeited her right to attorney fees by not properly using the Judicial Council forms to request them. The appellate court stated that this contention was unpersuasive because statutory attorney fees need not be proved at trial, but may be awarded after entry of judgment. Here, the attorney fees request was not all or part of a cause of action itself, and prevailing party fees in this instance were an incident of the principal cause of action. There was no forfeiture, and the legislative intent "to prevent domestic violence and to separate persons involved in this violence pending resolution of the causes of the violence" was preserved by allowing an attorney fees request to be heard after entry of judgment. In addition, the former boyfriend's due process rights were not violated because he was afforded adequate notice of the attorney fees request and given a full opportunity to defend his rights. There were no procedural irregularities that might support such a due process claim. Finally, the attorney fees award was supported by substantial evidence, particularly given that the court had reduced the $12,655 request to $5,000. This award did not shock the conscience of the...