Recent Posts in Court Rules and Procedures Category

• See whether the side has done everything the law requires of them in formulating your grounds for "good cause" under Rule 3.1332. If they have and your attorney failed to also comply, this is not good. If neither side did what is required to avoid irregularities, then that is better. If your side did comply but the side did not, that is best and you should point this out in your papers and in oral argument.

• Did both sides exchange the Final Declaration of Disclosure (there is more than one form) and FL-150's within 45 days of the first assigned trial date? The court does not have authority to have a trial when the parties have failed to comply with  Family Code section 2105.  Section 2106 clearly states this and Family Code section 2107(d) similarly states that it is not harmless error for trial courts to ignore FC §2105.

• Did the other side comply with all applicable Local Rules regarding trial? For instance, in Riverside County we have local Rule 5.0053 which mandates that a Trial Readiness Conference be set before trial, and at least in Indio that you (or your attorney) sign a form that you understood and will comply with what those rules require. Here is a link to Title 5 of the Riverside County Local Rules for Family Law cases. There may be similar rules in your jurisdiction. Rule 5.0065 discusses ex parte procedures in Riverside County, which generally includes the family law divisions in downtown Riverside, Hemet, Indio and Blythe.

• Draft a declaration that establishes good cause for your request - one that speaks to both justice and procedural issues. Anticipate what prejudice the other side will claim in opposition to your continuance request. Offer to ameliorate it if you can, in advance of the hearing on the ex parte.

• Rule 3.1332(d)(10) permits the court to impose "conditions" if it grants a continuance. These need to be reasonable of course. A frequent condition "no more continuances." Unreasonable requests may be that you are asked to waive a fundamental right that is a key issue in the case itself, i.e., a waiver of spousal support or an agreement that the court will have retroactive jurisdiction at the trial when it does occur to reach back and modify support to the first trial date. Offering to contribute to the other side's attorney fees incurred surrounding the rescheduling may be appropriate under certain facts.

• Before you file your ex parte, be sure to attempt to "meet and confer" with the other side in an effort to obtain a stipulation to continue instead, and in order to discuss how you might minimize their inconvenience and prejudice and to discuss possible reasonable conditions in advance of the hearing that would address those issues. Attach any confirming letters as an exhibit.

• Make your motion as short as possible and author it to read fast - not more than 10 pages including declarations, points and authorities, and exhibits. Judges have no time to read long winded stories.

• Be sure to notice all the parties for the ex parte. For instance, if there has been a Borson motion by either side that attorney (the former, Borson attorney) must also get notice of the hearing and the paperwork at the time you set the hearing.

• Hire your new attorney first and have them make the motion (which is costly in terms of the amount of the retainer they will reasonably require, since if the motion is denied that attorney knows he may be going into a trial that will take immediate emergency hours to come up to speed on).

• If  you haven't retained counsel yet and just want to continue a trial "to get counsel," you have a problem. While this excuse might work at the first hearing on an OSC or regular motion, it is unlikely to convince a judge who is managing his trial calender. 

Good luck with your new attorney!

Thurman W. Arnold, III, CFLS

• Moving and supporting papers (including the original Notice of Motion or Order to Show Cause application), must be served and filed 16 court days before the hearing date.

• However, add five days if the moving papers are not served personally but if instead they are sent by first-class regular mail from California to an address within this State (i.e., the proof of service must be dated at least 21 days before the hearing date).

• Add ten days instead if the place of mailing is outside of California or if the address to which the mail is being sent is outside the State.

• Add twenty days instead if the addressee resides, or the sender is serving from, outside the United States.

• If the recipient is outside the State, or the sender is out of state, but you serve by FAX, express mail, or another method of deliver providing for overnight delivery, add only two days.

• Opposition papers, like Responsive Declarations or Points and Authorities, must be filed with the Court and served at least nine court days prior to the hearing date.

• Reply papers, in response to opposition pleadings, must be filed and served at least five court days before the hearing.

• However, and importantly, note that  CCP §1005(c) requires that all Responsive Declarations (and other opposition paperwork) must be served by personal delivery, FAX, express mail, or other means sufficient to assure overnight service, "and reasonably calculated to ensure delivery to the other party or parties not later than the close of the next business day after the time the opposing papers or reply papers, as applicable, are filed". This includes all attachments or exhibits to those papers.

• This last point applies equally to Reply pleadings and supporting exhibits. A Reply must be filed with the Court clerk at least five court days before hearing - and the other party must actually receive it by the next day!

    "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

    (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

    (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."

Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules.  It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings.  It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia. 

It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully.  The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere).  There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
  
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true).  Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court.  Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise. 

The purpose of today's Blog is to introduce you to section 217 and the new changes.  I will follow up with more articles in coming weeks.  Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers. 

• If you can, try to research CCP § 1008, including looking at some legal treatise or the reported appellate decisions that mention it
• New or different facts don't generally include things you forgot to mention, unless you have some really credible explanation of why you forgot
• You must explain to the Court what you learned, how and when you learned it, why you didn't learn it earlier, and why these new or different facts matter enough that the Court should render a different outcome.  If the other party withheld facts that you became aware of only after the hearing, you need to describe your reasonable diligence in having attempted to first get all the facts
• New facts are not the same as different facts.  Be specific
• Telling the judge you just think she was wrong is rarely helpful - judges know they will be wrong some of the time, and they are trained as much to just make a decision as to get it right (clearly they want to get it right).  Most of us don't like being told we are wrong and that is rarely a useful persuasive tool.  Instead, focus on the justice or injustice of the situation and be humble
• Explaining that you made a mistake without more is also risky, because lawyers and parties do make mistakes in presenting their cases but the law favors finality in decision-making.  Your  mistake needs to have been a reasonable one. 
• Always consider combining your reconsideration request with a request for relief under Code of Civil Procedure § 473, which is a very important statute that covers relief from orders or judgments that result from your inadvertence, surprise, mistake, or reasonable neglect

In your situation the question will be:  If you knew 10 days before the hearing that your time had been cut back, why didn't you mention it?  If you did mention it, then the Court considered your evidence and ruled against you, so this would not be new information. 

Also, how different would the outcome have been if the Court had considered or known of the cut backs in your work?  For instance, if those cut backs are partial and your income is 15% less than the Court supposed, this may not seem so important to the Judge that she thinks she needs to correct the unfairness of the result.  If it is 40% less, she might.  There are no hard and fast rules that can be applied with consistency.

It is quite common for clients to wind up hiring attorneys after they attempted to handle their case on their own, and it blew up at the hearing, and now they need desperately to get more or better information in front of the judge.  It is very difficult to "un-ring the bell." 

When these things happen they are a good lesson of why the adversarial court process is to be avoided whenever possible, and of the importance of finding and listening to a competent lawyer early on in your case.