Cheers! European Beverage and One-judge Rules
| Publication year | 2023 |
| Author | Written by Nathan w. Gabbard |
Written by Nathan w. Gabbard*
"Is there a European Beverage waiver, counsel?" It is not uncommon to hear this type of inquiry during case management or trial setting conferences. Without knowing its meaning, a cautious counsel might answer in the negative to play it safe and guard against waiving any of a client's rights. Whether to agree to such a waiver is a case-specific analysis that will be benefited by having an understanding of what it is and why it exists.
The one-judge rule—the right to have one judge hear evidence and issues rulings—is the foundational context for the inquiry as to whether such a waiver is given. Notions of due process buttress the rule. However, as is common with legal principles in general, there are many exceptions to the rule. The one-judge rule, its application, and some exceptions will be discussed in this article.
Due Process Entitles The Parties To Have One Judge Hear All Evidence And Rule On All Issues, And It Is A Denial Of Due Process If A New Judge Renders A Final Judgment Without Having Heard All Evidence
As a general rule, parties are entitled to have one judge hear all evidence and rule on all issues in their case. If the judge who hears the evidence becomes unavailable, then a second judge must hear all of the evidence and decide all issues. It would be a denial of due process for the second judge to enter a judgment without hearing all evidence.
"The law has long been settled that in a civil action a party litigant is entitled to a decision upon the facts of his case from the judge who hears the evidence..."1
Where there has been an interlocutory judgment rendered by one judge, and that judge then becomes unavailable to decide the remainder of the case, a successor judge is obliged to hear the evidence and make his or her own decision on all issues, including those that had been tried before the first judge, unless the parties stipulate otherwise.2
"This is because an interlocutory judgment is subject to modification at any time prior to entry of a final judgment. [citation] It is considered a denial of due process for a new judge to render a final judgment without having heard all of the evidence."3
A party litigant is entitled to a decision upon the facts of his case from the judge who hears the evidence, where the matter is tried without a jury, and from the jury that hears the evidence, where it is tried with a jury. He cannot be compelled to accept a decision upon the facts from another judge or another jury.
This is in accord with the general rule on this subject.4
If litigants are entitled to such a right, how is it that family law cases are assigned a home court for pendente lite matters but then a different judicial officer presides over the trial for judgment?
The difference between direct calendaring and master calendaring sheds some light on this topic. Direct calendaring systems involve cases being assigned to a specific judicial
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officer from the commencement of the case. That judicial officer presides over all pendente lite requests for orders and pretrial proceedings, as well as presiding over the trial if the case goes to trial.5
Master calendaring systems do not necessarily have the same judge presiding over pendente lite and pretrial matters as trial. The supervising or master calendar judge assigns cases from the master calendar to trial departments as they become available.6
Direct calendaring or all-purpose assignments are required in all counties to the greatest extent possible.7 "To the extent possible, family law actions related to the same family should be assigned to the same judicial officer for all purposes, so that all decisions that are made in a case through final judgment are issued by the same judicial officer."8
However, all-purpose assignment is not required if it would significantly delay the matter or there is a stipulation otherwise.9 The point is that there should be a bona fide effort to have the same judge hear all matters through final judgment.10
As noted in a treatise on the topic: family courts in many counties (including Alameda, Contra Costa, Orange, San Diego, San Francisco, San Mateo and Santa Clara) generally bring cases to trial under some form of direct calendaring. However, due to severe court funding cutbacks and overloaded trial calendars, some family courts have had to adopt a hybrid system to counteract budget and backlog dilemmas. For example, in the Los Angeles Superior Court Central District, all Family Law Division cases are assigned to a "home" court for pretrial and case management procedures. When a case is ready for trial, it is transferred to a master calendar (or such other location as directed by court order) for all trial setting, trial readiness and trial settlement related matters. Thereafter, the case is reassigned for trial to any available trial department (which may include the "home" court). All other nontrial and postjudgment proceedings are heard in the "home" court.11
What if a client does not want a new judge for trial because, for instance, the home court judicial officer has familiarity with the case from having made interim orders throughout the pre-judgment pendency of the case?
An appropriate objection may be made at a case management or trial setting conference as to the one-judge rule. Specifically, the objection would be that having a different judge preside over trial would be a violation of due process as to the entitlement to have one judge hear all evidence and rule on all issues in the case, pursuant to European Beverage. To state it more plainly: There is no European Beverage waiver.
A judicial officer is then tasked with deciding whether significant delay would occur if the trial were to take place in the home court to avoid having a change of judicial officer in the case. If so, then the objection may properly be overruled, pursuant to Family Code section 2330.3, at least in a master calendaring system. Note, however, that if multiple judicial officers have already made rulings in the matter, the waiver will have already been implied, and, thus, the objection will not be well-made.
Could a trial commenced but not concluded with Judge A presiding be continued with Judge B presiding and issuing rulings?
This scenario is different from that as previously discussed because it...
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