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May I Make a Motion for a Directed Verdict in a California Family Law Case?

What is the Correct Procedure for Making a

Motion for Judgment in a Family Law, Non-Jury Trial?

Most trial lawyers, and particularly those with jury trial experience, are generally familiar with a Motion for Directed Verdict. These may be made under California Code of Civil Procedure (CCP) section 630. However, motions for a directed verdict are, technically speaking, appropriate in jury trials and not court trials. If granted, they operate to end the case partially or totally then and there in favor the party whose Motion is granted.

Of course, there are no juries in California divorce or family law proceedings.

Under section 630 (a), a Motion for a Directed Verdict is generally made "after all parties have completed the presentation of all their evidence in a trial by jury...." However, under subsection (a) the Court may specify and earlier date - i.e., after the party with the burden of proof rests their case.

I finished a bifurcated Court Trial today defending against the husband's request for an annulment because, he claimed, the Wife (my client) was a "serial monogamist" who failed to disclose to him - at the time they married, some 10 years before separation - that he was her eighth husband. His goal, of course, was to seek to avoid continuing spousal support and the creation of community property which is a potential consequence of a Judgment of Nullity of Marriage, to the extent that he could convince the Court that Wife could not also qualify for putative spouse status.

The reason the case finished was because the Court, after hearing all of the Husband's evidence over the course of four days - and consisting of his attorney's cross-examination of my client and his own direct testimony as well as my cross-examination of Husband's private investigator under Evidence Code section 776, but none of my cross-examination of Husband or direct examination of Wife - told Husband's attorney before I commenced presenting my case this afternoon that it felt Husband had failed to meet his burden of proof - which is by clear and convincing evidence in annulment cases - that Wife had actively defrauded Husband relative to the number of her prior marriages. Of course, my client had disclosed these prior marriages to Husband and I had the Husband tied up in nice little knots after taking his Deposition on two different days before trial, but I never got to begin to present that evidence, since the Court granted a Judgment in my client's favor at the conclusion of his case. Trial courts have an obligation to control and limit the proceedings, and it is a responsible Judge who stops them in mid-stream when the one side that has the burden of producing or proving evidence has failed to meet that burden.

While it was the Court, and not me, who initially raised the issue of the Husband's failure of proof (I thought about it, but wanted to finish the full trial so that I could get a Statement of Decision once I'd torn the Husband to shreds in order to help support my coming attorney's fee motion for all the effort and time that went into Husband's ridiculous assertions), the most appropriate procedure for challenging the presentation of evidence after a party rests in a family law case is CCP section 631.8, and not section 630. Of course, an appellate court would treat the Court's ruling (which was not expressly based upon a directed verdict under section 630), as a Motion under CCP section 631.8 - since they are essentially the same thing. And the sore loosers were threatening an appeal at once.

Section 631.8 states in relevant part:

"After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party. Such motion may also be made and granted as to any cross-complaint."

But I confess to not remembering section 631.8 specifically as opposed to the same concept underlying directed verdicts generally when I addressed the Court, until I returned home to bask in the glow of my client's win (after all, the failure of the Husband's case was so compelling that the Court didn't even need to hear my cross-examination but that was a real bummer because I was going to cut his heart out with my questions and his former testimony under oath at deposition, or my direct exam of my own client), while something was nagging at the back of my brain. Hence my further research, and today's Blog. Notably, the other attorney didn't notice the distinction either (but someone will point this Blog out to her). Anyway, winning a directed verdict, like winning a non-suit, isn't easy and is therefore quite satisfying (especially against top lawyers, and Husband's attorney is).

So, for all those non-jury trial, civil and divorce lawyers and self-represented parties out there, in order to give a perfect presentation remember that the optimal phrasing of your Motion for a Judgment in a non-jury trial will be to call it a motion for "Judgment pursuant to CCP section 631.8," and not for a directed verdict. It is essentially the same thing, but it would be nice to exactly identify the grounds on which the Motion is made.

Opps, its a complicated world out there even for the experts - be safe!

I'll come back to Blog about annulments for alleged fraud, which is another exciting and interesting topic, another day.

Author: Thurman W. Arnold, III CFLS


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