Fall 2016, Issue 4

Hot Off the Press! Journal Edition

Editor’s Note:
The holdings from various cases are below. Dawn Gray’s extensive summaries of these cases, as well as summaries of other cases of interest, too lengthy to publish in the Journal, are on the ACFLS website on the ACFLS Family Law Specialist Current Newsletters page.

Cite: De La Luz Perez v. Torres-Hernandez, No. A139710, 2016 WL 3769513 (Cal. App. June 8, 2016).

Holding: In this case, ordered published on July 11, 2016, the First District reversed a trial court’s order denying a request to renew a DVRO. It held that the trial court applied the incorrect legal standard to deny the request by erroneously concluding that there must be new evidence of abuse or threatened abuse to renew the order; that the restrained party’s past abuse or violations of the existing order did not support renewal; that the evidence of “new” abuse must be physical in nature; and that evidence of the restrained party’s abuse of the couple‘s children was not relevant to the DVRO renewal.

* * * * *

Cite: Anne H. v. Michael B., No. A146610 (Cal. App. June 15, 2016).

Holding: In this case, ordered partially published on July 12, 2016 at the request of ACFLS, the First District affirmed a trial court’s order denying mother’s request to modify a permanent custody order giving custody of the parties’ daughter to father during the school year and to mother during the summers. The trial court found no change in circumstances. In affirming, the panel held that “the statement in the custody order specifying changed circumstances requiring a reconsideration of custody arrangements was not binding on subsequent judges.”

* * * * *

Cite: Hayward v. Superior Court (Osuch), No. A144823 (Cal. App. Aug. 3, 2016)

Holding: In this case, a First District majority issued a writ voiding and vacating all orders made by a private judge, including the parties’ Memorandum of Intent regarding a settlement, holding that her failure to disclose in writing “information that is reasonably relevant to the question of disqualification under Canon 6D(3), including her professional relationship with the parties’ attorneys violated Canon of Judicial Ethics 5D(5)(a).” It also held that she “failed to comply with a provision of the Rules of Court requiring a temporary judge to certify (in his or her oath of office or otherwise) ‘that he or she is aware of and will comply with applicable provisions of canon 6 of the Code of Judicial Ethics and the Rules of Court.’ (Rule 2.831(b).)”

Other cases of interest:

In re Abbigail A., 2016 WL 3755924 (Cal. July 14, 2016): In this case, the California Supreme Court held that one ICWA Rule of Court – Rule 5.482(c), which requires the juvenile court to “proceed as if the child is an Indian child” and to take steps “to secure tribal membership for the child,” is invalid, but that Rule 5.484(c)(2), which “merely directs the juvenile court to pursue tribal membership for a child who is already an Indian child as defined in ICWA, in order to prevent the breakup of the Indian family and to qualify the child for tribal services,” is “consistent with state law and valid.”

In re Alexandria P., 2016 WL 3676682 (Cal. App. July 8, 2016): In this case, the Second District affirmed a trial court that held that child’s foster parents had not proven by clear and convincing evidence that “there was good cause to depart from the adoptive placement preferences set forth in the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).” It is a long and interesting opinion, discussing standards of proof and many factors impacting on the ICWA, foster parents, and the factors that the court uses to determine whether to place an Indian child with extended family members for adoption.

In re Isaiah W., 203 Cal. Rptr. 3d 633 (2016), 373 P.3d 444: In this case, the California Supreme Court majority held that:

a parent who does not bring a timely appeal from a juvenile court order that subsumes a finding of ICWA’s inapplicability may challenge such a finding in the course of appealing from a subsequent order terminating parental rights. Because ICWA imposes on the juvenile court a continuing duty to inquire whether the child is an Indian child, we hold that the parent may a challenge a finding of ICWA‘s inapplicability in an appeal from the subsequent order, even if she did not raise such a challenge in an appeal from the initial order.

ViaView, Inc. v. Retzlaff, 2016 WL 3626708 (Cal. App. July 6, 2016): In this case, the Sixth District granted a writ compelling the trial court to vacate its order denying husband’s motion to quash service of a TRO on the basis that it lacked personal jurisdiction over him. The trial court held that he had made a general appearance by filing an answer at the same time as his motion to quash. In issuing the writ, the panel said that he had not made a general appearance and that plaintiff failed to establish that defendant had minimum contacts with California sufficient to subject him to personal jurisdiction here.

Erler v. Erler, No. 14-15362 (9th Cir. 2016): In this case, a Ninth Circuit panel held the duty of support under a sponsorship contract extended beyond entry of dissolution judgment incorporating the waiver of spousal support provision of the parties’ premarital agreement, even when coupled with showing that wife was adequately supported by a third party (in this case, her adult son). This case discusses the factors and the public policy grounds upon which the sponsorship law is based and the relationship between state and federal courts. Specifically, the Ninth Circuit held that: “[w]e agree with the district court to the extent it found that, despite the divorce, Yashar has a continuing obligation to support Ayla. However, we hold that court erred in treating Ayla and Dogukan as a combined household for purposes of determining whether Yashar breached that obligation.” The parties’ California divorce previously resulted in an unpublished opinion upholding the validity of the parties’ premarital agreement.

DP Pham, LLC v. Cheadle, 200 Cal. Rptr. 3d 937 (Ct. App. 2016): In this case, the Fourth District reversed a trial court’s refusal to seal and exclude allegedly privileged documents and disqualify plaintiff’s counsel where he improperly obtained copies of privileged communications between defendant and his attorney and used them to oppose another party’s summary judgment motions. The trial court reviewed the communications and held that based on their content, they were not privileged. In reversing, the panel held that:

(a) court, however, may not review the contents of a communication to determine whether the attorney-client privilege protects that communication. The attorney-client privilege is an absolute privilege that prevents disclosure, no matter how necessary or relevant to the lawsuit. The privilege attaches to all confidential communications between an attorney and a client regardless of whether the information communicated is in fact privileged. Accordingly, it is neither necessary nor appropriate to review a communication to determine whether the attorney-client privilege protects it.

Once the proponent makes a prima facie showing of a confidential attorney-client communication, it is presumed the communication is privileged and the burden shifts to the opponent to establish waiver, an exception, or that the privilege does not for some other reason apply. The opponent may not rely on the communication’s content to make that showing.

Here, the trial court relied exclusively on the content of the communications to conclude they were not privileged and Pham points to no other evidence to support the trial court’s determination. The court also concluded the communications fell with certain statutory exceptions the Evidence Code establishes for the privilege. As explained below, we conclude the trial court erred in applying these statutory exceptions because to do so here would expand them well beyond their intended scope.

Although we reverse the trial court’s order denying the disqualification motion, we remand for the trial court to determine whether the receipt and use of the privileged communications by Pham’s counsel warrants disqualification. As explained below, the decision whether to disqualify counsel is vested in the trial court’s sound discretion based on its careful balancing of a variety of factors concerning the disclosure and use of the privileged information. The court never considered those factors based on its determination the communications were not privileged.

JAMS, Inc. v. Superior Court, No. D069862, 2016 WL 4014068 (Cal. Ct. App. July 27, 2016): In this case, the Fourth District denied a petition for writ of mandate to compel the trial court to vacate its order finding plaintiff’s action against JAMS and Honorable Sheila Prell Sonenshine (Retired) exempt from the anti-SLAPP procedures under the commercial speech exemption of section 425.17(c). It held that the “commercial speech exemption applies and precludes the use of the anti-SLAPP procedure in this case,” which arose out of plaintiff’s use of JAMS for alternative dispute resolution in his dissolution case. The complaint alleges that JAMS and Sonenshine omitted material information in their biography of her on their website. The panel said that:

Kinsella’s causes of action against JAMS and Sonenshine arise from statements posted on the JAMS Web site regarding Sonenshine’s background and qualifications to provide ADR services as well as general statements about how JAMS conducts its business in providing ADR services. These statements fit comfortably within the commercial speech exemption of section 425.17, subdivision (c).

Heidi S. v. David H., No. B263933, 2016 WL 4045404 (Cal. Ct. App. July 28, 2016): In this case, the Second District affirmed an LA County trial court that denied wife’s motion to modify a juvenile court exit order awarding father legal and physical custody of child and limited supervised visitation to wife. Wife brought the family court motion on the basis of changed circumstances just three months after entry of the exit order; the trial court found changed circumstances and expanded wife’s visitation but refused to award joint legal and physical custody. In what it calls a case of first impression, the Second District held that all of the trial court’s drug and alcohol testing orders were proper under Family Code section 3041.5 and that “(n)othing in the statute limits the family court to ordering drug testing for a fixed period of time.” It also held that the family court has the authority to order that a positive drug test result would immediately trigger a reduced visitation schedule.

In re Alexander P. (Heidi S. v. Michael P.), No. A146040, 2016 WL 4098682 (Cal. Ct. App. July 29, 2016): In this case, in a partially published opinion, the First District held that the family court orders determining that two men were child’s presumed fathers did not bind the juvenile court in a dependency action. Here is the court’s summary:

Alexander P. (minor), then three years old, became the subject of a dependency petition after his stepfather, Donald Q. (Donald) assaulted his mother, appellant Heidi S. (Mother), in the minor’s presence. At the time of the filing of the dependency petition, the minor’s paternity was the subject of competing motions filed in a family court action by two other men, appellants Michael P. (Michael) and Joel D. (Joel). Joel is the minor’s biological father, while Michael is the man with whom Mother was living at the time of the minor’s birth. Two weeks after the filing of the dependency petition, the family court ruled that both Michael and Joel qualify as presumed parents and designated both under Family Code 1 section 7612, subdivision (c), which authorizes multiple presumed parents.

When the juvenile court inquired into the minor’s paternity during the initial stages of this dependency proceeding, all three men sought to be declared the minor’s presumed parent. Michael and Joel based their claims on the family court’s order, while Donald provided evidence that he had, as a practical matter, served in the role of the minor’s father for the 20 months prior to his assault on Mother. Considering itself bound by the family court’s order, the juvenile court found both Michael and Joel to be presumed parents. The court also found that Donald satisfied the requirements for presumed parent status and designated him as well, pursuant to 7612, subdivision (c).

Michael and the minor have appealed the designation of Donald as a presumed parent, while several of the parties have challenged Michael’s designation. In addition, Michael has challenged the juvenile court’s subsequent denial to him of visitation with the minor.

We conclude that the juvenile court erred in finding Michael to be a presumed parent. Because Welfare and Institutions Code section 316.2 grants exclusive jurisdiction over paternity issues to the juvenile court upon the filing of a dependency petition, the family court order on which the juvenile court relied, issued subsequent to the filing, was void. The same reasoning applies to the designation of Joel as a presumed parent. We vacate the juvenile court’s designation of Michael and Joel as presumed parents and remand to the juvenile court for an independent determination of their requests for presumed parent status. We find no error in the designation of Donald as a presumed parent, which was supported by substantial evidence. Finally, we vacate the juvenile court’s order denying visitation to Michael and remand for reconsideration of his request in the event the court designates Michael as a presumed parent.