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Excluding evidence outside pleadings, including "incidents" not alleged in Request for DVTRO Orders


How Do I Exclude Evidence That Is Outside of the Scope of the Pleadings Filed By the Other Party At My Family Law RFO or Domestic Violence Hearing?

While historically it has seemed that Family Court is like the wild, wild west where anything goes and where attorneys argue on the fly and judge's get triggered into reactive rulings, without due process and other procedural considerations, that is changing. I've whined and complained about how broken the divorce and family court system is, but I am gaining hope.

As I've mentioned in my reviews of the important appellate court decisions that have been coming down over the past few years, the appellate judiciary has made a concerted and possibly not unconscious effort to reign in party and/or attorney overreaches, and increasingly to reverse errant bench officers who get fooled into losing their equanimity and ignoring the four corners of, in particular, statutory authority and so issuing harsh rulings.

This is absolutely a welcome trend, because it reflects a judicial activism that is subtle in an at-once forward and backward looking way in the following sense: The theme is one of judicial restraint in order to preserve the system that we are stuck with. In that way it is quite conservative and yet progressive. Last month's ruling in Marriage of Sagonowsky is an excellent example of an incredibly balanced decision in the face of egregious behaviors by the litigant you might love to hate. The California Supreme Court's ruling in Marriage of Davis is another excellent example because, even though the decision was overruled by the legislature, what our Court did not do was - well, it didn't do the legislature's job for it, and the legislature responded accordingly. The Supreme Court's Marriage of Valli decision is another example the lawyers will be familiar with.

This gives huge insight into how you should be fashioning your arguments in all your cases: With common sense, and a plain reading of the statutes. Pointing this out to you, and to myself, is worth the price of admission to the Enlightened Divorce Blog™, neh?

Framing the Issues is Jurisdictional In All Settings

As most young lawyers and new bench officers know, you cannot award spousal support in a case where the party seeking it didn't check the box on the Petition asking for it, because the request is jurisdictional and it violates due process (think "notice") to grant relief in excess of what the party has framed in their own pleadings. Likewise, most youngsters know that you cannot award relief in excess of what has been requested in an RFO FL-300, because that also frames the jurisdictional menu.

For instance, if the requesting party asks for pendente lite (temporary pre-judgment) spousal support, they cannot ask their bench officer at the hearing to give them attorneys fees too - the other party wasn't given notice of that request, and after-thoughts in family court litigation are and should be "so sad, too bad - fix it!".

Further, the responding party to an RFO cannot request attorney fees if the requesting party only requested spousal support, because you cannot raise new matters in responsive pleadings; instead, you must file your own separate RFO request. Inefficient? Not really. Due process trumps everything, unless your last name is Trump. We've written extensively about how to properly draft family court pleadings.

But, there seems to be a disconnect for all but the most experienced family court judges and attorneys when it comes to trial evidence presentation: Too often evidence that has been allowed in should be excluded because it also was outside the pleadings, and in that sense trial courts remain stuck with a foot in the OK corral, but maybe not for long.

The next logical extension that has not yet universally been undertaken by family lawyers and their bench officers (and certainly it is a mystery to pro se litigants) is this: The pleadings also must limit the evidence, not just the relief requested, and where someone wants to introduce matters that are "untethered" from the menu their pleadings set, they must be denied. BTW love the justices use of that word in the Sogonowsky decision!

This is not a new concept by any means, but it is in the ruff and tumble world of family law and divorce court - enough!

Evidence Outside the Scope of the Pleadings in the Domestic Violence Context - and What to Do About it

This analysis applies to any RFO short calendar hearing, or evidentiary hearing, but it will gain its greatest traction in the DV setting.

In the jurisprudence of domestic violence, abuse is defined by Family Code section 6203, but the operative illustration of what it might consist of is as set forth in Family Code section 6320.

When someone completes and files their DV-100 "Request for Domestic Violence Restraining Order", they are required to describe ALL of the "incidents" of abuse or domestic violence that they want the Court to consider. But, they are also setting the evidence menu for their DV trial, whether they know it or not. The DV-100 form asks the requesting party to describe each and every incident of DV that they deem relevant and important, and you can attach as many pages and supply examples of as many prior incidents that you want to. You are in control, so why shouldn't you be limited if you fail to do your job?

A party responding to a request for DV TRO's can, but is not required to, file a DV-120 Response to the Request. Let me tell you, in my humble opinion, if you are the responding party and expect to go to the mat on an evidentiary hearing at the DV hearing, always file the DV-120 but never describe your defenses - this isn't required, and it will gain you an advantage. Instead, simply state that you oppose the requests and deny the claims and that you will prove your case at trial. This alerts a trial judge reviewing his calendar in the morning that the DV application is opposed. It also avoids you showing your hand, and their is nothing sneaky about this because DV actions are a summary remedy, heard very soon, fraught with potential consequences, and - thankfully, the law doesn't require you to even file a Response. There may be exceptional reasons why you feel that you must specifically rebut the claims since, after all, the judge forms his or her initial impressions in the quiet of their chambers, and certain bells can be rung, but otherwise my recommendations stand.

The DV pendulum swings back and forth, but bench officers increasingly recognize the life transforming effects that the issuance of "permanent" DV orders can have on civil liberties, not to mention becoming visible to Homeland Security. These are abbreviated trials and summary proceedings where a party's rights to defend themselves may be very limited by time or finances - for instance, rarely does one see depositions of the accusing party taken before a DV trial, although that is the best practice in every one of these cases, if you can afford counsel. I once heard of a client that was found guilty of destroying a garden fountain by a newbie former DA judge who issued permanent DV orders on that basis alone, back when the pendulum was crazed, who not only lost his concealed carry permit but was also taken off a cruise ship in Canadian waters because he showed up in a CLETS inquiry. The judge was an idiot, but that didn't change the consequence where the gentleman could not afford an appeal.

How Do I Attack or Object to Evidence that is Tendered at a DV [Or Other Evidentiary] Hearing That is Outside the Scope of What Was Alleged?

The best practice for attempting to limit and exclude the evidence, including witness testimony and introduction of documents (including video and audio recordings - oh boy, wait for my next blog, you gonna like it!) is to file a Motion in Limine to Exclude Evidence the day before the DV trial and serve it upon opposing counsel or the other party the day you file it. Motions in Limine are authorized by Evidence Code section 353. Please note the numerical proximity of section 353 to Evidence Code section 352, another hugely important section. that my next blog about illegal recordings will discuss.

I also intend to give you a form of Motion in Limine form in our on-line Arnold Library Forms Portal, that you can adapt.

For now, let me tell you that the law is clear that the civil rules govern family law procedures, just as CCP section 128.5 applies to sanctions motions in divorce and famlaw cases. Family law attorney forget those arrows, for their quiver.

Domestic violence proceedings are summary in nature. As such, due process requirements and concerns require the greatest scrutiny and must limit far-ranging inquires that are beyond the scope of the issues and allegations framed by the pleadings. Even in non-summary situations, it is held that "it is axiomatic" that the pleadings establish the scope of an action and absent an amendment to the pleadings, the parties cannot introduce evidence about issues outside the pleadings. Schweitzer v. Westminster Investments (2008) 157 Cal.App.4th 1195, 1214-1215. [citing Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1091]. Further, "[w]hen evidence is not pertinent to the issues raised by the pleadings, the evidence is irrelevant and it is proper to preclude the introduction of such evidence." Id.

Schweitzer is a motion in limine case, which was brought at trial commencement when the plaintiff sought to add a theory at the last moment to avoid entry of judgment against it on its existing claims. It explains that "[a] motion in limine, which is a commonly used tool brought at the beginning of trial when evidentiary issues are anticipated by the parties, is designed to preclude the presentation of evidence deeded inadmissible and prejudicial by the moving party.""It serves the same function as a motion to exclude under Evidence Code section 353 by allowing the trial court to rule on a specific objection to particular evidence in advance of its introduction." Id at 1213. By the way, there is no rule that your motion must be filed before trial commencement - I just think it is a fairer and better practice to do so, if possible.

Recently in Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 898, the justices stated within a default judgment context that "the court cannot allow a plaintiff to prove different claims or different damages at a default hearing than those plead in the complaint." Imagine the respondent to a DV or RFO application doesn't file opposition or show up at the hearing - clearly the family court cannot grant relief in excess of what was requested in the moving papers.

While no published case yet exists that I know from a family court appeal about limiting evidence omitted in the pleadings, and the civil cases cited above deal with summary judgment or other pleading situations (motions to amend pleadings, for instance), family law declarations are unique in the sense that they are pleadings that don't usually offer legal conclusions at all, but instead are almost entirely evidentiary in nature. As Carlsen notes within the civil complaint context, for instance one claiming the tort of intentional infliction of emotional distress (my hypothetical), a "well-pleaded complaint 'set's for the ultimate facts constituting the case of action, not the evidence by which plaintiff proposes to prove those facts.' [Citation omitted]," and a civil plaintiff would not include each and every act that caused them emotional distress, or every manifestation of that distress.

Family law evidentiary pleadings are entirely different in nature: Imagine filing a DV request for orders if it existed within a purely civil context: It would actually be improper to state specific evidence in a civil complaint (which would lthen be subject to a motion to strike those portions of the pleadings) - one would merely instead need to allege a prima facie case for domestic violence. Such a complaint would not set forth each and every instance of alleged incident of "abuse." But that is not what is required by California's Domestic Violence Prevention Act (DVPA), or Judicial Council Forms. Family law and motion pleadings are not based upon "ultimate facts" but actual happenings in people's lives. As such, they must give notice to the other party not of the "ultimate facts" - like the conclusion that domestic violence occurred - but specific facts of what it consisted of. Enforcing the rule that family law litigants cannot take the other party and the court down rabbit holes and into cul de sacs promotes justice and even-handedness in such cases, and it is a powerful weapon to curb the craziness of accusation and blame in the land of relationship-endia. Family Code section 210 makes it plain that all the rules of civil practice apply to proceedings under the Family Law Act.

But, you say, you just cited authority that only ultimate facts need to be pleaded in civil complaints? While this is true as far as it goes in such initial pleading stages, I don't believe that a sophisticated family court bench officer could possibly accept that argument given the qualitatively different analysis inherent to DV requests or pendente lite order situations, because the civil court rulings limiting evidence to the pleadings in default situations and in summary judgment, where evidence and not ultimate facts rule, make it "axiomatic" that the acts and damages alleged post-complaint absolutely limit the scope of relief that civil trial courts are permitted to issue. The "ultimate fact" rule does apply to initial pleadings such as the Petition for Dissolution where, for instance, someone who failed to check the box requesting spousal support will be precluded from seeking spousal support at a temporary support hearing, or at the final trial, absent an amendment - but evidentiary hearings are exactly like default situations and akin to summary judgment situations in civil courts.

I've just cited a few cases to support the exclusionary rule that parties cannot bring in incidents of DV beyond what they've alleged. But, there are a bunch of other cases that say the same thing. I just wanted to get you focused and going! Remember, these rules are not limited to defending domestic violence accusations.

What About Character Evidence Introduced by Collateral Bad Acts?

Often the other party will argue that "hey, so I am precluded by my lack of thoroughness to now directly bring in testimony or documents or videos, etc., because I failed to mention that incident in my pleadings. But, this person is a bad actor and I want to offer these other incidents as impeachment or proof that they acted the way I did plead because they acted like that before!" The answer is this: To attempt to bring evidence of incidents outside the pleadings would only be an attempt at introducing improper propensity evidence to establish conduct on a specific occasion, to bootstrap the incidents that maybe they did not remember to mention. Evidence Code section 1101.

Be safe out there, and tune in over the next few days for some other cool stuff about illegally recorded video and audio evidence. Got a trial tomorrow on these very issues, so must shut this computer down - but I represent the falsely accused mother/ex-wife -- surprise! Sorry, I am a nut - and love this stuff, and justice for all.

Author: Thurman W. Arnold III