Spring 2015, Issue 2

Hot Off The Press!

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.

Andrew V. v. Superior Court, 234 Cal. App. 4th 103 (2015).
Holding: In this case, the Fourth District issued a writ of mandate compelling an Orange County trial court to vacate an order allowing W to “temporarily” relocate to Washington with the parties’ two minor children pending a full evidentiary hearing on the relocation issue.

In re the Marriage of M.A. and M.A. et al., decided by the Fourth District on February 24, 2015.
Holding: In this case, the Fourth District reversed the orders of a court commissioner made after she failed to act on a party’s statement of disqualification. It held that her failure to rule on the statement resulted in her being deemed to have consented to the disqualification, rendering her subsequent orders void.

Other Cases of Interest:
Becker v. Mays-Williams, No. 13-350069 (9th Cir. Jan. 28, 2015): In an ERISA interpleader action, the Ninth Circuit reversed an order of the U.S. District Court for the Western District of Washington. It held that a written beneficiary designation form was not a “plan document” and that nothing in the plan documents prohibited an unmarried employee from giving telephonic instructions to change his or her beneficiary fits. Therefore, the Plan was required to honor H’s post-disso telephonic instructions to change his beneficiary from W to his son and could not refuse to honor the request because he failed to confirm it by signing the written beneficiary designation form before he died.

Aghaian v. Minassian, No. B252326, 2015 WL 661169 (Cal. Ct. App., Feb. 17, 2015): In this case, the Second District reversed a trial court’s grant of a motion to stay a civil case under forum non conveniens. The trial court held that Iran was a suitable forum; in reversing, the panel held that there was insufficient evidence that Iran would be a suitable forum, because (n)otably absent is any indication that plaintiffs could receive a fair trial. Instead, the evidence is overwhelming that Iranian courts discriminate against women and non-Muslims.

Among other things, plaintiffs submitted evidence that the testimony of a woman counts for half the value of that of a man, and that women are not treated equally before the courts, particularly in personal status matters relating to marriage, divorce, inheritance, and child custody, and only men can serve as judicial officers.

Both Clawson and Kar confirm that the judiciary in Iran is heavily influenced by religious authorities and that the law requires the head of the judiciary as well as the prosecutor general and all Supreme Court judges to be high ranking clerics. Clawson cites to “many accounts of unequal treatment afforded to non-Muslims by Iranian courts” as a basis for his opinion that the Iranian legal system discriminates on the grounds of sex, religion, and political opinion. Athari’s declaration admits that Iranian law must not be in direct conflict with Islamic tenets. Two of the three plaintiffs here are women and the Galstian family members are not Muslim.

Leaving aside whether Iranian courts are independent or corrupt, this is sufficient to show Iran is not a suitable alternative forum. This is the “rare circumstance” in which an alternative forum “provides no remedy at all.”

Ocegueda v. Perreira, 232 Cal. App. 4th 1079, 181 Cal. Rptr. 3d 845 (2015): In this case, the Third District reversed a Yolo County trial court. In what it calls a case of first impression, “we are asked to decide whether California is the home state of a child who was born in Hawaii, remained in Hawaii for six weeks with his mother, then traveled to California with his mother, where, within 24 hours of his arrival, custody proceedings were commenced by his father in a California court.”

The panel said:
The trial court determined that mother, who lived and was employed in California prior to the child’s birth, went to Hawaii to give birth but intended to return to California. The court thus concluded that mother and the child “lived” in California, and their time in Hawaii was merely a temporary absence from California.

We disagree. We conclude the child lived in Hawaii by virtue of the child’s presence in Hawaii for the six weeks following his birth, leaving the state and traveling to California only 24 hours before father initiated these proceedings. We further conclude this fleeting presence in California prior to commencement of these proceedings does not alter the conclusion the child lived in Hawaii.
Because the child was born in Hawaii and lived in Hawaii with his mother following his birth, Hawaii is the child’s home state.

R.M. v. T.A., 233 Cal. App. 4th 760, 182 Cal. Rptr. 3d 836 (2015): In this case, the Fourth District affirmed a trial court’s order finding that R.M. is Child’s presumed father. T.A. conceived Child through artificial insemination, and R.M. is not Child’s biological father.
The trial court declared R.M. to be Child’s presumed father by applying the parentage presumption set forth in Family Code section 7611, subdivision (d) (hereafter, section 7611(d)).

This statutory provision creates a presumption that a person is the natural parent of a child if the person shows by a preponderance of the evidence that he or she received the child into his or her home and openly held the child out as his or her own child.

Mother claims she chose to be a single parent of Child and raises numerous constitutional and other legal challenges to the manner in which the presumed parent statutory scheme was applied in her case. Based on the fundamental constitutional right to parent one’s child without interference, she requests that we establish a rule that a decision to form a single parent family should be afforded the same constitutional protection as a two parent familial arrangement. She also asserts the standards associated with the presumed parent statute do not adequately protect the constitutional rights of a single parent ‘by choice.’
We hold that application of the presumed parent statutory scheme in this case did not constitute an unconstitutional interference with Mother’s fundamental right to parent her child.

We conclude (1) the section 7611(d) parentage presumption serves the legitimate state interest in providing stability for children who have a parental relationship with the person afforded presumed parent status; (2) because the statutorily-prescribed requirements for the presumption necessitate a fully-developed parental relationship between the person and the child, the statute ensures that application of the presumption will not deprive a parent of his or her right to raise a child without interference by a nonparental figure; and (3) there is no basis for us to alter the long-established standards that govern the presumed parent statutory scheme.

Rodriguez v. Brill, No. F068518, 2015 WL 737383 (Cal. Ct. App., Feb. 20, 2015): In this Marvin action, the Fifth District reversed a trial court’s order denying W’s motion for relief from a default entered based on terminating sanctions for her failure to timely respond to a discovery demand. It held that the mandatory relief provided by section 473(b) upon an attorney’s declaration of fault is available when a judgment of dismissal is entered as a terminating sanction for discovery abuse. It also held that “section 473(b)’s requirement that the ‘application for relief’ be ‘in proper form’ means verified discovery responses must be served with a motion for mandatory relief from a terminating sanction when that sanction was based on the failure to respond to discovery.” It said that:
[A]n attorney’s application for mandatory relief would be in proper form if verified discovery responses are served on or before the motion for relief is served. Such service would demonstrate a willingness and ability to comply with discovery requests and related orders and demonstrate that pending discovery would not be a source of further delay.

However, like the court in Carmel, Ltd. v. Tavoussi, supra, 175 Cal.App.4th 393, we conclude the phrase ‘in proper form’ is satisfied by substantial compliance. (Id. at pp. 401-403 [defendants substantially complied with requirement to submit a proposed answer with motion by making a copy available at the hearing].) A test for substantial compliance is whether the moving party has demonstrated a willingness and ability to comply with the procedural requirements that led to the dismissal.

In the context of a terminating sanction for failing to provide discovery, we conclude substantial compliance is demonstrated if, at or before the hearing on the motion for relief, the moving party has served a copy of verified discovery responses on opposing counsel. Service of final discovery responses indicates the moving party’s readiness to proceed on the merits.

Blumberg v. Minthorne, 183 Cal. Rptr. 3d 179 (2015): In this case, the Fourth District applied the disentitlement doctrine and dismissed D’s appeal from the trial court’s orders after a bench trial in a civil case involving the administration of a trust, citing D’s flagrant violation of the trial court’s orders. It said that:
Gloria’s conduct since the judgment has frustrated the attempts of the court to legitimately effect its own orders. She has missed court dates, failed to keep her own promises, lacked candor in her communications with the court, and ignored the court’s orders. She cannot therefore now seek relief from the appellate court. The disentitlement doctrine applies.