Fall 2015, Issue 4

Hot off the press! Journal Edition

Editor’s Note:
The holdings from various cases are below. Dawn Gray’s extensive summaries of those cases, too lengthy to publish in the Newsletter, are on the ACFLS website on the Current Newsletters page. The full text of her short summaries of other cases of interest is also provided below and on the website.

In re the Marriage of Lafkas, 188 Cal. Rptr. 3d 484 (2015).

Holding: In this case, the Second District partially reversed a trial court’s holding that a partnership interest acquired during marriage was community property. It held “that when a spouse places separate property in joint title form, the transmutation requirements of section 852 must be satisfied before the joint title presumption of section 2581 applies. The documents in this case do not contain an express transmutation of husband’s separate property interest in the partnership, and therefore, it remained husband’s separate property.” It remanded on the issue of the character of loan proceeds received during marriage, noting that “(a) spouse’s signature on a note and mortgage does not compel finding that the lender relied on the credit of the community.” It also reversed an order for attorney fees “in light of our conclusion that the judgment must be reversed as to the characterization and division” of the partnership interest.

Jane J. v. Super. Ct. (Christopher J.), 188 Cal. Rptr. 3d 432 (2015).

Holding: In this case, the Fourth District issued a peremptory writ in the first instance because:

respondent court erroneously issued a modification order changing custody to the noncustodial parent, thereby requiring the minor children to move in the middle of the school year from their California home to the noncustodial parent’s home in Alabama. Respondent court abused its discretion by failing to consider the relevant factors, including the children’s existing educational, physical, emotional and familial relationships with the custodial parent, and whether an out-of-state move-away would detrimentally affect their interests in continuity and stability.

In re the Marriage of Evilsizor and Sweeney, 189 Cal. Rptr. 3d 1 (2015), reh’g denied, decided by the First District on May 27, 2015, certified for publication on June 23, 2015.

Holding: In this case, the First District affirmed a trial court’s issuance of a domestic violence restraining order preventing husband from disseminating information downloaded from wife’s cell phones around the time she gave birth to their daughter. It held that husband’s actions amounted to abuse under the DVPA and that the order did not violate his constitutional free speech rights.

In re the Marriage of Davis, 61 Cal. 4th 846 (2015).

Holding: In this case, the California Supreme Court reversed the First District and held that Family Code section 771(a) requires that spouses must be “living in separate residences in order for their earnings and accumulations to be their separate property.”

In re the Marriage of Oliverez, no. H040955, 2015 WL 4498017 (Cal. Ct. App. June 24, 2015).

Holding: In this case, the Sixth District reversed a trial court’s holding that a prior trial judge erred in refusing to grant a motion to enter judgment on an MSA under Code of Civil Procedure (“CCP”) section 664.6. The court held that “under the circumstances of this case, once the court had determined that the Agreement was unenforceable, wife had the right to believe the ruling was definitive. It follows that the reconsideration of the prior ruling on the Agreement resulted in unfairness to the wife.”

In re the Marriage of Olson, No. B258767, 2015 WL 4572662 (Cal. Ct. App. July 30, 2015).

Holding: In this case, the Second District refused to grant a writ of mandate, holding “that a parent has standing under Family Code section 3087 to request a modification of a child custody judgment notwithstanding that the judgment sought to be modified was a default judgment taken against the parent who is petitioning for the change.”

Other cases of interest:

Obergefell v. Hodges, 576 U.S. ___ (June 26, 2015): In this case, the U.S. Supreme Court majority held that the 14th Amendment to the Constitution requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state.

Finton Constr., Inc. v. Bidna & Keys, APLC, 190 Cal. Rptr. 3d 1 (2015): In this civil case, the Fourth District said:

We find FCI’s conduct with respect to this entire case demonstrative of a particularly nasty type of scorched earth tactics. A purportedly stolen hard drive, which was placed in the hands of defendants solely for litigation purposes, has resulted in an attempt to disqualify counsel and two efforts to depose counsel in the underlying case, a police report, complaints to the State Bar of California, and this entirely derivative and unmeritorious second lawsuit. FCI’s overreach does not suggest zealousness or righteousness, but a calculated effort to undermine the parties in the underlying case by turning their attorneys into fellow defendants.

While we strongly suspect that FCI is the prime mover behind the prosecution of this lawsuit, we remind FCI’s counsel – and indeed, all attorneys – that while they owe their clients a duty to zealously represent them, that zealousness does not trump the duty they owe the courts and the judicial process to prosecute only lawsuits with merit. The type of uncivil behavior and specious tactics demonstrated by filing this case represents conduct that brings disrepute to the entire legal profession and amounts to toying with the courts.

Less than 48 hours prior to oral argument, the parties notified us they had reached a settlement. The court, however, declines the parties’ request to dismiss the appeal. This is a particularly egregious SLAPP, filed against defendants for the sole “crime” of representing their clients in the underlying action. The lack of civility demonstrated in this case is a matter of public interest. Moreover, while we cannot be certain, it appears that FCI deliberately decided to keep this action pending until the last possible moment in order to avoid the opinion we write today. We therefore decide in defendants’ favor and publish this case as an example to the legal community of the kind of behavior the bench and the bar together must continually strive to eradicate.

Ironridge Global IV, LTD. v. ScripsAmerica, Inc., 189 Cal. Rptr. 3d 583 (2015): In this civil case, the Second District dismissed an appeal after applying the disentitlement doctrine because the appellant was in violation of the trial court’s orders made after entry of a settlement under CCP section 664.6. It cited family law cases on the issue.

Altafulla v. Ervin, 189 Cal. Rptr. 3d 316 (2015): In this case, the Fourth District affirmed the trial court’s issuance of a DVPA restraining order.

The trial court’s orders arise out of Ervin’s discovery that Altafulla had been unfaithful. In response to the discovery of Altafulla’s unfaithfulness, Ervin sent emails to Altafulla’s employer and their mutual friends and attached a surveillance report that he believed established the unfaithfulness. More importantly, at the home he shared with Altafulla, and in fairly graphic terms, Ervin described oral copulation to Altafulla’s 17-year-old and nine-year-old daughters, stated his belief Altafulla had engaged in oral copulation with another man, and then warned the girls about what he believed was a risk they could contract sexually transmitted diseases from towels their mother might use. In an apparent further effort to traumatize the children, Ervin began dismantling their bedroom furniture.

Altafulla’s 17-year-old daughter was in fact so traumatized by Ervin’s behavior that she required inpatient care at a mental health facility, which would not release her until Ervin had moved out of the home.

Among other claims, Ervin contends this record is not sufficient to support a DVPA restraining order. We disagree. Ervin’s email campaign and emotional abuse of Altafulla’s daughters amounted to conduct that was alarming, annoying and harassing, served no legitimate purpose, would cause a reasonable person substantial emotional distress, and actually did cause substantial emotional distress. As such, Ervin’s conduct constituted harassment within the meaning of the DVPA and was therefore sufficient to support issuance of a restraining order.

Estate of Duke, 190 Cal. Rptr. 3d 295 (2015): In this case, decided on July 27, 2015, the California Supreme Court reversed its prior decisions barring reformation of an unambiguous will. It held that an unambiguous will may be reformed after the testator’s death “if clear and convincing evidence establishes that the will contains a mistake in the expression of the testator’s intent at the time the will was drafted and also establishes the testator’s actual specific intent at the time the will was drafted.”

Sanders v. Yanez, No. H041578, 2015 WL 4572836 (Cal. Ct. App. July 30, 2015): In this case, the Sixth District reversed a trial court’s holding that an adult adoptee was not the decedent’s “issue,” which expressly included “adopted children,” and did not fall within this definition of “issue” because he had been adopted as an adult under Texas adoption statutes. The probate court believed that a Texas parent-child relationship did not encompass the same rights and duties as a California parent-child relationship. The Sixth District reversed, holding that “Texas adult adoption laws do sever the parent-child relationship between the adopted adult and his or her biological parents because, by Texas statute, they lose their mutual inheritance rights. The precise parameters of the rights and duties imposed by Texas law on parents and children are not relevant to the determination of the status of an adopted person because those rights and duties apply to both biological children and adopted persons.” ■