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Case of the Month Archive

July 2019

Wife failed to take necessary procedural steps to require husband's live testimony. . .


In affirmance, Fourth District holds that trial court did not err by imposing Fam C §271 sanctions on wife for declining to approve settlement reached by parties at prior settlement conference, which forced husband to file a CCP §664.6 motion to enter judgment and incur additional attorney's fees.


In re Marriage of George and Deamon

(May 17, 2019)

California Court of Appeal 4 Civil D073667 (Div 1) 35 Cal.App.5 th 476, 247 Cal.Rptr.3d 420, 2019 FA 1889, per Irion, J (Huffman, Acting PJ and Guerrero, J, concurring). San Diego County: Powazek, J, affirmed. For appellant: pro per. For respondent: Rachel Moffitt, (619) 236-1551. CFLP §§P.69.5, P.69.10.


Stephanie George and Daniel Deamon separated on March 23, 2015, and began disso proceedings to end their 19-year marriage. At a mandatory settlement conference on June 1, 2017, they reached a settlement on all of the disputed issues, which was then recited on the trial court record. The trial court directed Daniel's attorney to prepare a judgment and send it to Stephanie for her approval. The court noted that the settlement could be enforced by a CCP §664.6 motion for entry of judgment, "if necessary." That same day, the lower court entered judgment dissolving the parties' marital status.


When Daniel's attorney sent Stephanie the proposed judgment for her approval, she "raised several issues and demands" and declined to approve it. After several unsuccessful efforts to obtain her approval, Daniel's attorney filed a request for entry of judgment per CCP §664.6, along with a request for sanctions against Stephanie to the tune of $10,000. Counsel also filed a supporting declaration and other documents relating to the attempts to obtain Stephanie's approval. Before the hearing on the CCP §664.6 motion, Daniel's attorney filed updated information regarding the motion and the supporting documents. It is unclear whether Stephanie filed written opposition to the motion, but she apparently filed a declaration.


At the hearing on September 7, 2017, Stephanie stated that she had approved the current form of the disso judgment and the trial court entered judgment. At a continued hearing on Daniel's sanctions request, the trial court allowed Stephanie, who was in pro per, to submit some documents not previously submitted. Stephanie made a continual objection to Daniel's not being present for any of the hearings (He was in Japan) and to hearsay, and declined to stipulate to the declarations. She and Daniel's attorney made "extensive comments" regarding the sanctions motion, after which the trial court took the matter under submission. In late November, the trial court issued an order finding that Daniel had met his burden of showing that he incurred unnecessary attorney's fees and costs due to Stephanie's conduct re the proposed judgment. The court then directed Stephanie to pay $10,000 in Fam C §271 fees as sanctions. The court also listed the documents on which it had relied in reaching its decision, including those that Daniel submitted in a notice of lodgment and referenced in his declarations and the documents Stephanie submitted at the sanctions hearing.


Stephanie appealed, but the Fourth District affirmed.


It says here. . .
Stephanie contended that the trial court erred by relying on Daniel's documents instead of requiring him to support his sanctions motion with live testimony. As she saw it, she had a right to present live testimony and to cross-examine Daniel, which had been denied her when the court relied on declarations. The justices noted that Fam C §217(a) required a trial court to receive live competent testimony that is relevant and within the scope of the hearing, but Fam C §217(b) permits the court to refuse to receive life testimony if it finds good cause to do so, and states its reasons for that finding on the record or in writing. The panel pointed out, however, that Fam C §217(c) states that a party who seeks to present live testimony from witnesses other than the parties must file and serve a witness list with a brief description of the anticipated testimony. It also permits the trial court to grant a brief continuance and temporary orders if the party fails to serve the witness list prior to the hearing. The justices agreed with Stephanie that she had a right to present live testimony unless the trial court found good cause not to allow it. However, they reasoned, she had to follow proper procedures, as set forth in Fam C §217(c), to ensure that Daniel was available to give live testimony. Without that, they found, Daniel was not required to appear at the hearing and could be represented by counsel, as he was.


Step by step. . .
To ensure that Daniel would appear at the hearing, the panel explained, Stephanie was required to serve him with a notice to appear under CCP §1987(b). She had not done that. Moreover, the justices continued, she had effectively forfeited her right to present live testimony by failing to file a witness list or to provide live witnesses. Since Stephanie had taken no procedural steps to present live testimony, the panel found, the trial court could properly decide the matter on the declarations. They noted that the lower court failed to make express findings of good cause to refuse to hear live testimony, but determined that it was not prejudicial because Stephanie had failed to follow the proper procedural requirements and to explain how Daniel's live testimony would have related to the issues in the sanctions request. As for Stephanie's reliance on In re Marriage of Swain (2018) 21 Cal.App.5 th 830, the panel acknowledged that the court in that case held that the trial court must exclude a declaration where the opposing party is unable to cross-examine the declarant. However, they found that the case was factually distinguishable, since the husband first learned of the declaration at the hearing, the trial court said it would not consider its contents, and the husband was precluded from taking any steps to obtain the wife's live testimony. Here, the justices reasoned, Stephanie was not prevented from taking steps to obtain Daniel's live testimony; she simply failed to take them. Summing up, the panel concluded that on these facts, the trial court did not prejudicially err by deciding the sanctions motion on the declarations and documents alone.





Readers will note that Fam C §217(c)'s requirement for a witness list applies where there will be witnesses other than a party. We don't think the panel is saying that Stephanie needed to file a witness list in order to obtain live testimony from Daniel, since the statute clearly says it applies to "live testimony from witnesses other than the parties". However, she couldn't cross-examine him if he wasn't there in the flesh, so she needed to file a notice to appear to require him to attend. We've seen cases in which a party is represented by counsel who is in court, but the party appears by phone. Would that have sufficed here or would Daniel have had to return from Japan? It's not clear.



The justices may appear to gloss over the trial court's requirement of stating its reasons for finding good cause to deny live testimony. Given Stephanie's having dropped the procedural ball, they are inclined to be lenient. That doesn't mean that they don't know they are being lenient. In their closing paragraph, they conclude that "although in certain circumstances the family court is required by section 217 to receive live testimony when deciding a motion, the family court in this case did not prejudicially err by deciding the sanctions motion based on the declarations and documentary evidence alone." In other words, this case doesn't set down a sweeping new rule, but should be limited to its factual situation.



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