Summer 2015, Issue 3

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 Marriage of Rifkin and Carty, 184 Cal. Rptr. 3d 783 (2015)

Holding: In this case, the First District dismissed Husband’s appeal from the trial court’s prefiling order after declaring him a vexatious litigant, holding that the appeal was untimely.

In re Marriage of Winternitz, 185 Cal. Rptr. 3d 458 (2015)

Holding: In this case, the Fourth District affirmed the trial court’s denial of W’s move-away motion. It held that the trial court properly refused to strike an evaluator’s report as defective, that the court applied the correct legal standard to the motion and weighed the appropriate factors in deciding that the proposed relocation was not in the child’s best interests.

Ellis v. Ellis, 185 Cal. Rptr. 3d 587 (2015)

Holding: In this case, the Second District dismissed W’s appeal from a second dissolution judgment as untimely. It held that the time for appeal ran from entry of the original written judgment and not from a second judgment correcting the first one.

In re Marriage of Honer, 186 Cal. Rptr. 3d 607 (2015)

Holding: In this partially-published opinion, the First District affirmed a trial court’s order valuing the community business and upheld the court’s ability to approve a valuation that does not involve selling the business rather than one that approaches the valuation as if the business would be sold. The trial court approved a “marital value” rather than a “market value” for the business, which it found was more appropriate. The panel held that the court can value a community asset at a date earlier than near the time of trial when one party’s conduct has made a near-trial date valuation difficult.

Other cases of interest:

In re Jesus M., 184 Cal. Rptr. 3d 920 (2015): In this dependency case, the Second District reversed a trial court’s grant of sole custody of the parties’ children to M and termination of dependency jurisdiction. It held “that the court’s finding that Father’s conduct — harassing the children’s mother in violation of a family law restraining order and denigrating the mother to the children — placed the children at risk of emotional, but not physical injury, could not support assertion of jurisdiction under [Welfare and Institutions Code §300] subdivision (b), which requires proof of physical harm or substantial risk of such harm.”

Amis v. Greenberg Traurig LLP, 185 Cal. Rptr. 3d 322 (2015) (review filed Apr. 28, 2015): In this legal malpractice action, the Second District affirmed a trial court’s grant of summary judgment to defendant attorneys. It held that the plaintiff “cannot circumvent mediation confidentiality by advancing inferences about his former attorney’s supposed acts or omissions during an underlying mediation.”

In re R.T., 185 Cal. Rptr. 3d 730 (2015) (review filed May 13, 2015): In this case, the Second District held that the juvenile court can assert dependency jurisdiction over a child who places herself in substantial risk of serious harm without any finding of culpability on the parents’ behalf. It holds that “(w)hen a child thereby faces a substantial risk of serious physical harm, a parent’s inability to supervise or protect a child is enough by itself to invoke the juvenile court’s dependency jurisdiction.”

Estate of Britel, 186 Cal. Rptr. 3d 321 (2015): In this case, the Fourth District affirmed a probate court’s ruling denying the petition of the mother of the decedent’s natural child born out of wedlock to establish that she was his “heir” under Probate Code §6453(b)(2). It held that she had not proved by clear and convincing evidence that the decedent had “openly held out the child as his own” because although the evidence demonstrated that the decedent was the child’s biological father, “openly held out” required “an unconcealed affirmative representation of paternity in open view,” and his repudiation of any relationship with the child failed to meet this test. It held that proven biological paternity was insufficient to make a child an “heir” and that the law governing child support does not apply to a nonmarital child’s inheritance rights because “the law of intestacy is distinct from child support law.”

In re Nicholas E., 186 Cal. Rptr. 3d 656 (2015): In this case, the Second District reversed a juvenile court’s dismissal of a dependency petition on the basis that there was a pending family court case that had awarded custody of the children to the non-“offending” parent. The panel held that dismissal was improper and that the juvenile court should have allowed the Department an opportunity to prove that dependency jurisdiction was warranted, and that the pendency of the family court custody matter “does not deprive the Department of the opportunity to try.” ■