Recent Posts in Venue Category
| March 22, 2011 |
| What to Do If My CASE Is Being TRANSFERRED BETWEEN COURTS in Riverside County? |
| Posted By Thurman Arnold |
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Q. My Wife's attorney filed a dissolution at the main Riverside County courthouse in Riverside, but we both live in the Coachella Valley. They should have filed it in Indio. It is a long drive for me to downtown Riverside from my home and I don't want the case there. But I need immediate help with spousal support and attorney fees and we filed a motion for these orders that had to be set in Riverside. Now the other side agrees they filed in the wrong court and my attorney is concerned about when my motion will finally get heard if the case gets transferred to Indio. Is there anything I should do or know?
David
David:
This can be a real problem in terms of timing and delay. Because of the Elkin's onslaught many judges are feeling cranky and overburdened by the significant increase in demands upon their time (having to hold evidentiary hearings whenever a party requests them). Your wife and her attorney may well be intentionally stalling your access to justice. It is highly likely that when you arrive in Court for the hearing on your motion, the judge is going to refuse to go forward insisting that "we already have enough business here." He may order that the case be transferred to Indio, and not issue any orders at all pending that transfer.
It typically takes a month or more to accomplish a transfer between courts, even those within the same county. In the meantime, you fall off the map. The inefficiency is really quite extraordinary, and flies in the face of the reasons for the Elkin's changes (premised on better access to justice and ensuring due process in family court cases). Elkins is creating a lot of problems for underfunded court administrators, and appears likely to have the reverse impact than was intended.
Moreover, you may find that the motion for support that never gets heard in Riverside effectively goes off calender, meaning you may have to refile or submit ex parte paperwork to the Indio judges to have it reset for hearing. In the meantime you could lose possibly two to four months of time. There may be an issue whether the orders, when you finally obtain them, are retroactive to the date your first filed for them.
In order to avoid this, do not assume that the Riverside judge or the clerks will properly manage your case, or that a hearing will get re-set by them in the interim while the transfer is occurring - without more. Have your attorney insist at the hearing in Riverside that before you leave that day a new hearing date for your motion has been set in Indio and if the Riverside judge refuses to listen, make sure that your objections are placed on the record. That is the best you can do.
T.W. Arnold, CFLS
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| December 03, 2010 |
| ELKINS and New FAMILY CODE SECTION 217: How It AFFECTS YOU! |
| Posted By Thurman Arnold, CFLS |
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The most important new rule in decades affecting the experience of California Family Law litigants is set to be unleashed on January 1, 2011.
It promises a radical change in the way that all family court proceedings - whether they be dissolutions, legal separations, annulments, support applications, custody, and modifications of all of the above - are processed and decided by Superior Court judges and commissioners.
This is a result of the Elkins Task Force, which has been quietly operating in the background of the California family law world since roughly August 6, 2007, when the game changing case of Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337 was decided by our California Supreme Court.
Elkins was a landmark decision which held that the Contra Costa County Superior Court could not through its local rules limit parties in marital dissolution actions to introducing evidence in written declaration form that had to be submitted in advance of trial, or prohibiting except in "unusual circumstances" one party from cross-examining the other about the contents of those declarations. Such a rule, intended for the sake of calendar management and judicial economy, not only had the practical if unintended consequence of favoring parties with attorneys who understood how to work with these rules but fundamentally it violated due process by cutting off litigants' abilities to present all relevant, competent evidence on material issues. Judges, as the triers of fact, are not able to assess witness demeanor and credibility without live testimony.
What is earth shattering about this decision in these economic times is that the Contra Costa Superior Court had urged that its policies and local rules were essential for the "expeditious resolution of family law cases." Soon to be former Chief Justice Ronald George rejected this justification:
"We are aware that superior courts face a heavy volume of marital dissolution matters, and the case load is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. [Reference omitted]....
In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trail proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent's future involvement in his or her child's life, dividing all of a family's assets, or determining levels of spousal and child support....
Trial courts certainly require resources adequate to enable them to perform their function. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting programs that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources."
Justice George ended by directing the California Judicial Council to create a task force (the 'Elkins Task Force) "to study and propose measures to assist trial courts in achieving efficiency and fairness in marital proceedings and to ensure access to justice for litigants, many of whom are self-represented. Such a task force might wish to consider proposals for adoption of new rules of court establishing state wide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to postjudgment motions. Special care might be taken to accommodate self-represented litigants. Proposed rules could be written in a manner easy for lay-persons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court." Hence, the Elkins decision is essentially a Jeffersonian ruling that its intended to empower family law litigants and to require counties and courts to adapt.
The Elkins Task force completed its work and has issued lengthy recommendations. The first changes take place on January 1, 2011. Possibly the most important change is embodied in Family Code section 217. It states:
"(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.
December is new legislation month at the Southern California Family Law Blog presented by Family Law Attorney Thurman W. Arnold. My goal is to inform you well, and early on, on any number of topics that will improve your outcome in family law matters and hopefully help you to reach results that are fair for you, your spouse or ex-partner, your children, and your blended and extended families.
T. W. ARNOLD, III, CFLS
(State Bar of California, Board of Legal Specialization) |
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| December 17, 2009 |
| How Do I CHANGE VENUE in a divorce? |
| Posted By Thurman Arnold |
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Q.: My wife moved to the desert with our two sons about 5 months ago. Up to that time, we were living together at our home near Watsonville in Santa Cruz county, where I still live. Yesterday she served me with a divorce petition filed in Indio, in Riverside County.
We own several parcels of property in northern California, and I have a business here. All my family members live within 50 miles of our home. I have no connections with southern California or the Palm Springs area. Is there anything I can do to move the case to Santa Cruz?
A. When partners separate it may be ill-advised to simply wait and react to the choices the other makes rather that taking steps to protect oneself. Particularly when a spouse moves out of the area, more so with children, you need to be alert to the possibility that they are establishing residency elsewhere - it can be another county or another state.
There is a time rule in service of papers from competing jurisdictions that goes like this: The first party to serve the other party with papers, so long as the papers were filed in the proper venue, determines which courts will decide the case. This may force you to come to him or her, rather than the reverse, and dramatically increase the costs of a case. If children are involved and you don't oppose the move at the outset, it may become an accomplished fact and also make it more difficult to change venue since information concerning the children is now best found in the location where there parent has moved to and enrolled them in school. Being forced to litigate far from home is a serious disadvantage.
All that is required for a resident of California to file a dissolution action within a given county is that they have resided there for at least 3 of the preceding 6 months.They don't even need to establish the 3 months in cases of Petitions for Legal Separation. This is also true for domestic violence.
You may file a motion or OSC for change of venue. You are asking the court to voluntarily give up the case and move it to another jurisdiction, which requires a court order. Parties can agree between themselves to transfer venue and can submit a Stipulation and Order for Change of Venue, but if one side does not agree the court will make a decision based upon which venue, or forum, is the most efficient forum for adjudicating the issues. One ground for changing venue is the doctrine of forum non conveniens, which simply means " inconvenient forum."
You may be able to succeed in moving the case to Santa Cruz County depending upon all the facts. "A court may, in its discretion, choose to refrain from exercising its jurisdiction to hear a case if the case may be more appropriately tried elsewhere. (Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744).
California codified this principle, known as forumnon conveniens, in Code of Civil Procedure section 410.30." Code of Civil Procedure section 410.30, subdivision (a),(2) provides as follows: "When a court upon motion of a party or its own motion finds that in the interest of substantial justice an action should be heard in a forum outside this state, the court shall stay or dismiss the action in whole or in part on any conditions that may by just." Courts sometimes reframe the question as whether the chosen forum is "seriously" inconvenient. The party seeking change venue has the burden of proof.
Generally, these are the principles and questions which the court needs to answer to decide whether to move a case: whether the alternate forum is a "suitable" place for trial. If it is, the next step is to consider the private interests of the litigants. The private interest factors are those that make trial and the enforceability of the ensuing judgment expeditious and relatively inexpensive, such as the ease of access to sources of proof, the cost of obtaining attendance of witnesses, and the availability of compulsory process for attendance of unwilling witnesses. The public interest factors include avoidance of overburdening local courts with congested calendars, and weighing the competing interests of California and the alternate jurisdiction in the litigation.
When a motion to change venue is made on the grounds of "convenience of witnesses and the ends of justice" pursuant to Code Civ. Proc. §396b, the party tendering that issue bears the burden of showing through affidavits, declarations or other admissible evidence, both the reasons it would be inconvenient for witnesses to attend, and the materiality of their anticipated testimony. (Flanagan v. Flanagan (1959) 175 Cal.App.2d 641, 643, 346 P.2d 418.)
At the very minimum, the evidence and supporting declarations should show:
- The name of each witness for whom it will be inconvenient to testify;
- The substance of their anticipated testimony;
- The reasons why it would be inconvenient for the witnesses to appear in that court; and
- Why the ends 'ends of justice' would be promoted by the requested change of venue.
The declaration should be very specific and contain, for example, evidence showing "the locality in which they live, stay or work; or, if employed where, when, by whom, or the nature of their employment; or the accessibility to or remoteness of the court or the lack of means of conveyance or time for attending the trial; or the lack of convenience due to distance, inability to leave work or home, health or old age." (
Id. at p. 645.)
The declarations must be competent evidence, i.e. should not consist solely of hearsay, generalities and conclusions. (Lieppman v. Lieber (1986) 180 Cal.App.3d 914, 919, 225 Cal.Rptr. 845).
Based upon a proper showing, and considering the whether the competing evidence is also compelling, you may succeed in changing venue. For instance, the court will consider competing hardships and expenses to the resisting party. The longer a party is in the county or forum you wish to change, the harder it can become to move the case.
But, in your case, given that mother has only been with in Riverside County for five months, the children probably haven't established such ties to local resources that local witnesses on custody for visitation issues are more important than those where the children have lived all their lives (you can see this factor would be less important with young children). Also, if there are disputes over values and characterizations of your real estate and your business, this is a strong argument that the proper venue for you may be Santa Cruz county.
This doctrine also applies as between larger forums - for instance, deciding whether another state or even another country is a more appropriate forum. At the same time, if there is already a proceeding or Judgment in another state or country, it may be impossible to change a forum and move a divorce case unless specific requirements are met - which is all the subject of a different article.
TWA
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