Case of the Month Archive

Reiflerized hearings are still OK . . .

In reversal, California Supreme Court holds that local rule and trial scheduling order, which required parties in disso trials to present cases through written declarations in which they had to establish admissibility of all exhibits to be introduced at trial, violate statutory bar against admission of hearsay evidence in declarations at trial

Jeffrey and Marilyn Elkins were married in 1980; their only child was born in 1991. They later separated, and Marilyn filed for divorce. The trial court bifurcated the issue of the date of separation, which was tried first; property issues were scheduled for trial on September 19, 2005. At the time, Contra Costa County Local Rules, former rule 12.5(b)(3) precluded direct examination in disso trials, except in unusual circumstances or for proper rebuttal, and the trial court was required to decide cases based on declarations submitted before trial. In addition, a local trial scheduling order (TSO) required the parties to file initial declarations executed by the parties and their witnesses 10 court days prior to trial, with responses due five days before trial. The declarations were required to set forth the foundation for admission of any trial exhibits, and failure to comply with the TSO could result in the preclusion of testimony and exhibits.

Marilyn, represented by counsel, filed the required documents and a trial brief on September 2, 2005, followed by a responsive declaration on September 8. Jeffrey, who was in pro per, filed a trial brief and a declaration on September 2, but he failed to attach exhibits, and he didn’t deliver his trial binder with 36 exhibits until September 18. As set forth in Marilyn’s declaration, the issues for trial included the valuation and disposition of the family home, Jeffrey’s right to reimbursement for postseparation improvements to the house, the characterization and division of a multimillion-dollar settlement award to his business, his income, the characterization and division of community property withdrawn by him, the division of Marilyn’s retirement account and the contents of a joint safety deposit box, the determination of her separate-property claims, and her request for attorneys’ fees. The parties waived spousal support, and deferred child support for future hearing.

At trial, Marilyn’s attorney objected to all but two of Jeffrey’s exhibits because Jeffrey’s declaration failed to refer to the exhibits or establish their admissibility. The court, which had not received copies of Jeffrey’s declaration or exhibits before trial, reviewed Jeffrey’s copy on the bench. Marilyn’s attorney added that if his objection was sustained, he would not cross-examine Jeffrey, and he argued that Jeffrey “was ‘not entitled to offer any further evidence.’ ” Jeffrey tried to object, stating that he’d followed the same procedure as in the bifurcated trial, but the court told him he had misunderstood counsel’s objection. It explained the TSO re admissibility of exhibits, and asked Jeffrey to direct the court’s attention to where in his declarations his foundational arguments could be found. Jeffrey tried to explain one of his exhibits, but the court said that direct testimony was not allowed, and offered Jeffrey time during a break to submit the missing evidentiary foundations. The court tentatively sustained counsel’s objection, subject to further argument after the morning break (which never actually took place). The court admitted Marilyn’s declaration and exhibits, and her attorney objected to any consideration of Jeffrey’s proposed order. After the court verified that Jeffrey had declined to cross-examine Marilyn, he rested his case; he also declined to admit his declaration into evidence, and offered to give up his interest in the family home and in his car. The court refused to accept that offer, stating that it would decide the case in line with Marilyn’s trial brief. Jeffrey then told the court that he had come there to present his position, only to have his case gutted and to be completely cut out of presenting it. He said, “ ‘I might as well give up my position and leave it to the best well-being of my family.’ ” After additional discussion, the court took the matter under submission, terminated the marital status, and reserved additional issues for further trial. On October 3, 2005, the court filed a final disposition of the property issues, retaining Jeffrey’s interest in the family home, dividing Marilyn’s retirement plan, and resolving further issues as proposed in Marilyn’s order. Noting the parties’ stipulation, the court terminated jurisdiction over spousal support, and reserved jurisdiction over child support.

Jeffrey petitioned the First District for a writ of mandate or prohibition, claiming, among other things, that the local rule and the TSO were without statutory authority and impermissibly created “ ‘trial by declaration,’ ” in violation of his due-process rights. The appellate court summarily denied his petition. The California Supreme Court granted Jeffrey’s petition for review, and the high court has now reversed the First District, and remanded.

Within reason . . .
The justices acknowledged that trial courts have both inherent and statutory authority to make rules and adopt procedures to control litigation. However, they cautioned, that authority is not limitless; for example, Govt C §68070(a) permits a court to make rules governing itself and its officers, but such rules may not be “ ‘ inconsistent with law or with the rules adopted and prescribed by the Judicial Council.’ ” (Emphasis in opinion.) In addition to limitations by statute, the justices continued, there are those imposed by case law where appellate courts have invalidated or restricted local rules, such as in Hogoboom v. Superior Court (1996) 51 Cal.App.4th 653, 59 Cal.Rptr.2d 254, where the Second District invalidated a trial court rule that imposed a fee on family law mediation over and above the statutory fee, and McLaughlin v. Superior Court (McLaughlin) (1983) 140 Cal.App.3d 473, 189 Cal.Rptr. 479, 1983 CFLR 2194, FIRST ALERT #F-82-33, where the First District held that a local rule that allowed a custody mediator to make a written recommendation to the court without giving its factual basis or submitting to cross-examination violated the due-process rights of family law litigants. The Supremes noted that a “common theme” in the cases in which local rules were invalidated is “one that also appears in the present case”: The local rule seeks to make court procedures more efficient and to conserve judicial resources, but in doing so it impairs the “countervailing interests of litigants as well as the interest of the public in being afforded access to justice, resolution of a controversy on the merits, and a fair proceeding.”

Trying times . . .
The justices recognized that disso courts have employed “some informality and flexibility,” but they pointed out that the statutory rules of evidence and procedure applicable in other civil cases also apply in family law cases, and they reiterated that local rules may not conflict with them. The rule and order in this case, the Supremes reasoned, require admission of declarations in place of direct testimony. However, that flies in the face of the well-established rule that written declarations constitute hearsay and are inadmissible at trial. The justices acknowledged that there are exceptions to that rule, such as Fam C §2336, which requires affidavits to prove certain facts in a default judgment, and CCP §2009, which allows courts to rely on affidavits in some motion matters but applies only to procedural matters. However, the justices emphasized, “there is no statutory exception to the hearsay rule for contested marital dissolution trials.”

Eyes and ears open . . .
The Supremes also reasoned that it is important for the trial court, as the trier of fact, to be able to assess the credibility of the witnesses, “a critical issue in many marital dissolution trials.” Historically, trials have been conducted through oral testimony by the litigants and their witnesses, and it has been said that litigants have a fundamental right to present evidence at trial by calling witnesses or to testify themselves; it is part of having one’s day in court. Moreover, the justices continued, the trial court should not make a decision until it has heard all the relevant evidence and considered the demeanor of the witnesses to evaluate their credibility. Neither written testimony nor cross-examination, the justices said, is a fair substitute for hearing direct testimony. Summing up, the justices concluded that the rule and the TSO in this case violate the hearsay rule by making written declarations admissible as a basis for decision in a contested disso trial.

Afraid not . . .
The justices disagreed with the contention that the high court’s decision in In re Marriage of Brown and Yana (2006) 37 Cal.4th 947, 38 Cal.Rptr.3d 610, 127 P.3d 28, 2006 CFLR 10229, FIRST ALERT #F-2006-1228 had given trial courts leeway to deny full evidentiary hearings in family law cases. They pointed out that there had already been a full evidentiary hearing on custody prior to the entry of the judgment in that case; thus, the court had authority to deny another hearing where there had been no significant change of circumstances. In addition, the justices said, that case did not discuss either the hearsay rule or CCP §2009. As for the argument of the respondent court here that Ev C §765 gives a trial court authority to substitute hearsay declarations for actual direct testimony, the justices said that that statute, which gives trial courts the power to control “ ‘the mode of interrogation of a witness,’ ” has never been interpreted as permitting a trial court to disregard other evidentiary rules, such as the hearsay rule. The justices were similarly unpersuaded by the assertions that excluding declarations as hearsay would “overturn settled practice and cause serious disruption,” or that giving litigants the opportunity for cross-examination was sufficient. Marilyn claimed that the distinction between disso trials and the motion hearings permitted under Reifler v. Superior Court (Reifler) (1974) 39 Cal.App.3d 479, 114 Cal.Rptr. 356 is “illusory”; the justices didn’t agree. A trial produces a judgment, they said, the correctness of which is assumed when a litigant files a postjudgment motion to modify it; that assumption would be questionable if the judgment was based on hearsay, unless it is hearsay to which the parties have stipulated. Marilyn also contended that Jeffrey had waived his right to challenge the rule because he had not objected to it at trial. Not so, the justices said; Jeffrey may not have specifically objected to the rule, but he had objected to the exclusion of his evidence for failing to comply with the TSO. The justices thought that the trial court had abused its discretion by imposing that sanction on Jeffrey; a majority of the justices believed that it was “disproportionate and inconsistent with the policy favoring determination of cases on their merits.” Where, as here, there has been no history of abuse of the litigation process, the majority found, trial courts should be reluctant to impose sanctions that “crippl[e] a litigant’s ability to present his or her case.” There is a strong public policy in favor of trying cases on their merits, the majority declared, and that applies in dissos as well as in other cases. Here, the majority concluded, “the trial court applied the sanction provision of its local rules in a mechanical fashion without considering alternative measures or a lesser sanction.” In so doing, it had “improperly impaired [Jeffrey’s] ability to present his case, thereby prejudicing him and requiring reversal of the judgment.”

Fast, and furious clients . . .
The majority next took time to address the respondent court’s contention that its rule and TSO were supported “ ‘[f]irst and foremost’ ” by a desire for “efficiency and the ‘expeditious resolution of family law cases.’ ” The majority justices were not impressed. In their view, efficiency is admirable, but it is not as important as providing litigants with “fair and accessible justice.” The majority noted that in In re Marriage of Brantner (1977) 67 Cal.App.3d 416, 136 Cal.Rptr. 635, 1977 CFLR 1078, the Fourth District made a statement that is as true now as it was then: “ ‘While the speedy disposition of cases is desirable, speed is not always compatible with justice. Actually, in its use of courtroom time, the present judicial process seems to have its priorities confused. Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-the-totem-pole treatment.’ ” The majority noted that in local surveys and amicus briefs, family law practitioners had disputed the assertion that the rule and the TSO were more efficient, produced more settlements, or helped pro per litigants; in the view of the amici, the procedures made things more confusing for pro pers, and put greater burdens on both practitioners and the court because the former had to prepare voluminous materials, and the latter had to read them. Moreover, the amici contended, litigants are more likely to take “extreme positions” in declarations, making cases more contentious and less likely to settle. In addition, practitioners reported that their clients “ ‘are stunned to be told that they will not get to tell their story to the judge,’ ” and feel that they are being “ ‘denied their right to have their case heard by a judicial officer,’ ” causing them to express “ ‘shock, anxiety, and outrage.’ ” These briefs, along with other information found in a statewide survey, convinced the majority that the local rule at issue here has adversely affected the respect and trust that litigants have for the legal system because they are not allowed to “ ‘tell their story’ ” to the trial court. The majority justices stated that “family law litigants should not be subjected to second-class status or deprived of access to justice,” and they suggested that the Judicial Council establish a task force to investigate the “unusual burdens and restrictions that have been imposed upon family law litigants at the local level in response to increasing case loads and limited judicial resources.” Accordingly, the Supremes reversed the denial of Jeffrey’s writ petition, and they remanded to the First District with directions to issue a writ consistent with this opinion.

Another world . . .
In a separate concurrence, Justice Werdegar agreed that the local rule and the TSO were not statutorily permitted and that the trial court had abused its discretion by excluding Jeffrey’s exhibits. However, she did not believe that the trial court acted “arbitrarily or unduly ‘mechanically’ in excluding [Jeffrey’s] evidence” because it was bound by the local rule and the TSO. Justice Werdegar declined to join in the majority’s “policy critique” of the rule and the TSO, and she believed that criticism by the amici family law practitioners would be better addressed to the Judicial Council or the Legislature.