Supreme Court of CaliforniaJeffrey ELKINS, Petitioner,

v.The SUPERIOR COURT of Contra Costa County,

Respondent;Marilyn Elkins, Real Party in Interest.

No. S139073.Aug. 6, 2007.

Background: Wife initiated marital dissolutionproceedings, and a local superior court rule and atrial scheduling order required that parties were re-quired to present their case by means of written de-clarations. Husband represented himself, and theSuperior Court, Contra Costa County, No.MSD01-05226,Barry Baskin, J., found that hus-band's pretrial declaration failed to establish theevidentiary foundation for all but two of his exhib-its. The trial court adjudicated the parties' claimssubstantially in the manner requested by wife. Hus-band filed a petition for writ of mandate or prohibi-tion in the Court of Appeal, which summarilydenied the petition. The Supreme Court grantedhusband's petition for review.

Holding: The Supreme Court, George, C.J., heldthat local superior court rule and trial schedulingorder that required parties to present their case bymeans of written declarations were inconsistentwith the hearsay rule and various statutory provi-sions; disapproving County of Alameda v. Moore,33 Cal.App.4th 1422, 40 Cal.Rptr.2d 18.

Judgment of Court of Appeal reversed, andmatter remanded.

Werdegar, J., filed a concurring opinion.

West Headnotes

[1] Courts 106 78

106 Courts106II Establishment, Organization, and Proced-

ure106II(F) Rules of Court and Conduct of

Business106k78 k. Power to regulate procedure.

Most Cited CasesTrial courts possess inherent rulemaking au-

thority as well as rulemaking authority granted bystatute. West's Ann.Cal.C.C.P. §§ 128, 177, 575.1.

[2] Courts 106 1

106 Courts106I Nature, Extent, and Exercise of Jurisdiction

in General106k1 k. Nature and source of judicial au-

thority. Most Cited Cases

Trial 388 18.1

388 Trial388III Course and Conduct of Trial in General

388k18.1 k. In general. Most Cited Cases(Formerly 388k18)Courts have fundamental inherent equity, su-

pervisory, and administrative powers, as well as in-herent power to control litigation before them; suchinherent power entitles trial courts to exercise reas-onable control over all proceedings connected withpending litigation in order to insure the orderly ad-ministration of justice.

[3] Courts 106 78

106 Courts106II Establishment, Organization, and Proced-

ure106II(F) Rules of Court and Conduct of

Business106k78 k. Power to regulate procedure.

Most Cited CasesA trial court is without authority to adopt local

rules or procedures that conflict with statutes orwith rules of court adopted by the Judicial Council,

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or that are inconsistent with the Constitution or caselaw.

[4] Divorce 134 146

134 Divorce134IV Proceedings

134IV(L) Trial or Hearing134k146 k. Mode and conduct of trial in

general. Most Cited CasesLocal superior court rule and trial scheduling

order in family law court that required parties indissolution trials to present their case by means ofwritten declarations were inconsistent with thehearsay rule and various statutory provisions to theextent they rendered written declarations admissibleas a basis for decision in a contested marital dissol-ution trial; since marital dissolution trials operatedunder the same general rules of procedure that gov-erned other civil trials, written testimony in theform of a declaration constituted hearsay and wassubject to statutory provisions governing the intro-duction of such evidence; disapproving County ofAlameda v. Moore, 33 Cal.App.4th 1422, 40Cal.Rptr.2d 18. West's Ann.Cal.C.C.P. §§ 2002,2005; West's Ann.Cal.Evid.Code §§ 210, 351, 711,780, 1200; West's Ann.Cal.Fam.Code § 210.See 11 Witkin, Summary of Cal. Law (10th ed.2005) Husband and Wife, § 99; Hogoboom & King,Cal. Practice Guide: Family Law (The RutterGroup 2007) ¶¶ 13:80, 13:81, 13:106 (CAFAMILYCh. 13-B).[5] Divorce 134 146

134 Divorce134IV Proceedings

134IV(L) Trial or Hearing134k146 k. Mode and conduct of trial in

general. Most Cited CasesTrial court abused its discretion in marital dis-

solution proceedings by sanctioning husband by ex-cluding the bulk of his evidence simply because hefailed, prior to trial, to file a declaration establish-ing the admissibility of his trial evidence, as re-quired under local superior court rule and a trialscheduling order; such a sanction was dispropor-

tionate and inconsistent with the policy favoringdetermination of cases on their merits.

[6] Courts 106 85(2)

106 Courts106II Establishment, Organization, and Proced-

ure106II(F) Rules of Court and Conduct of

Business106k85 Operation and Effect of Rules

106k85(2) k. Construction and applica-tion of rules in general. Most Cited Cases

Although authorized to impose sanctions forviolation of local rules, courts ordinarily shouldavoid treating a curable violation of local procedur-al rules as the basis for crippling a litigant's abilityto present his or her case, and, in the absence of ademonstrated history of litigation abuse, an orderbased upon a curable procedural defect, which ef-fectively results in a judgment against a party, is anabuse of discretion.

***484 Garrett C. Dailey for Petitioner.

Law Offices of Marjorie G. Fuller, Marjorie G.Fuller, Fullerton, and Shara Beral Witkin, Irvine,for Southern California Chapter of the AmericanAcademy of Matrimonial Lawyers, Northern Cali-fornia Chapter of the American Academy of Matri-monial Lawyers, Los Angeles County Bar Associ-ation, Los Angeles County Bar Association FamilyLaw Section, Orange County Bar Association, Hon-orable Donald B. King, Honorable Sheila Prell Son-enshine, Honorable J.E.T. Rutter and HonorableRichard Denner as Amici Curiae on behalf of Peti-tioner.

***485 Horvitz & Levy, David S. Ettinger, Encino;Eisenberg and Hancock and Jon B. Eisenberg, Oak-land, for Respondent.

Fancher & Wickland, Paige Leslie Wickland; Har-kins & Sargent and Daniel S. Harkins for RealParty in Interest.

Fox and Bank, Ronald S. Granberg, Salinas, Dawn

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Gray, Grass Valley, Linda Seinturier, Redding,Kathryn Fox, Bakersfield, Brigeda D. Bank; andStephen Temko, San Diego, for Association of Cer-tified Family Law Specialists as Amicus Curiaeupon the request of the Supreme Court.

Lee C. Pearce, Walnut Creek, for the Family LawSection of the Contra Costa County Bar Associ-ation as Amicus Curiae upon the request of the Su-preme Court.

GEORGE, C.J.*1344 **161 Petitioner Jeffrey Elkins repres-

ented himself during a trial conducted in maritaldissolution proceedings instituted by his wife, Mar-ilyn Elkins (real party in interest), in the ContraCosta Superior Court. A local superior court ruleand a trial scheduling order in the family law courtprovided that in dissolution trials, parties mustpresent their case by means of written declarations.The testimony of witnesses under direct examina-tion was not allowed except in “unusual circum-stances,” although upon request parties were per-mitted to cross-examine declarants. In addition,parties were required to establish in their pretrialdeclarations the admissibility of all exhibits theysought to introduce at trial.

Petitioner's pretrial declaration apparentlyfailed to establish the evidentiary foundation for allbut two of his exhibits. Accordingly, the court ex-cluded the 34 remaining exhibits. Without the ex-hibits, and without the ability through oral testi-mony to present his case or establish a foundationfor *1345 his exhibits, petitioner rested his case. Asthe court observed, the trial proceeded “quasi bydefault,” and the court's disposition of the parties'property claims demonstrated that the court dividedthe marital property substantially in the manner re-quested by petitioner's former spouse.

Petitioner challenges the local court rule andtrial scheduling order on the grounds that they areinconsistent with the guarantee of due process oflaw, and that they conflict with various provisions

of the Evidence Code **162 and the Code of CivilProcedure. Respondent court counters that the pro-mulgation of the rule and order comes within itspower to govern the proceedings before it, and thatits rule and order are consistent with constitutionaland statutory provisions.

We need not reach petitioner's constitutionalclaim because, as applied to contested marital dis-solution trials, the rule and order are inconsistentwith various statutory provisions.FN1 As we ex-plain below, we reach this conclusion because, pur-suant to state law, marital dissolution trials proceedunder the same general rules of procedure that gov-ern other civil trials. Written testimony in the formof a declaration constitutes hearsay and is subject tostatutory provisions governing the introduction ofsuch evidence. Our interpretation of the hearsayrule is consistent with various statutes affording lit-igants a “day in court,” including the opportunity topresent all relevant, competent evidence on materialissues, ordinarily through the oral testimony of wit-nesses testifying in the presence of the trier of fact.

FN1. Our conclusion does not affect hear-ings on motions.

Although we are sympathetic to the need of tri-al courts to process the heavy case load of dissolu-tion matters in a timely manner, a fair and full adju-dication on the ***486 merits is at least as import-ant in family law trials as in other civil matters, inlight of the importance of the issues presented suchas the custody and well-being of children and thedisposition of a family's entire net worth. Althoughrespondent court evidently sought to improve theadministration of justice by adopting and enforcingits rule and order, in doing so it improperly devi-ated from state law.

Subsequent to the trial (and our grant of re-view) in the present case, respondent incorporatedmuch of its trial scheduling order into regularly ad-opted and published local rules of court. As ofJanuary 1, 2007, respondent's local rules wereamended to provide that although declarations still

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are required from each witness in a dissolution trial,litigants have the option of calling witnesses fordirect examination in addition to filing declara-tions.FN2 *1346 This amendment does not renderpetitioner's case moot, because the prior rule andorder were enforced against petitioner. In addition,the amended rules still require the admission intoevidence of hearsay declarations, a practice incon-sistent with the Evidence Code.

FN2. The local rule effective January 1,2007, is similar to the trial scheduling or-der except that, in addition to the requireddeclarations, it permits parties to presentlive testimony limited to the scope of thematerial in the declaration (Super. Ct. Con-tra Costa County, Local Rules, rule 12.8F.1.a), italics added). The rule alsoprovides that “[a]ny required evidentiaryfoundation (including stipulations) for ad-mission of the proposed exhibits shall becompletely set forth in the declaration(s),as all rulings will be based on the declara-tions alone.” (Id., rule 12.8 F.5., italics ad-ded.)

In addressing the issues raised by petitioner, wealso exercise our inherent authority to ensure theorderly administration of justice and to settle im-portant issues of statewide significance. (SeePeople v. Kelly (2006) 40 Cal.4th 106, 110, 51Cal.Rptr.3d 98, 146 P.3d 547; In re Roberts (2005)36 Cal.4th 575, 593, 31 Cal.Rptr.3d 458, 115 P.3d1121; Konig v. Fair Employment & Housing Com.(2002) 28 Cal.4th 743, 745–746, fn. 3, 123Cal.Rptr.2d 1, 50 P.3d 718; Burch v. George (1994)7 Cal.4th 246, 253, fn. 4, 27 Cal.Rptr.2d 165, 866P.2d 92.) In addition to providing guidance to thetrial courts, our discussion highlights the unusualburdens and restrictions that have been imposedupon family law litigants at the local level in re-sponse to increasing case loads and limited judicialresources. We observe that this problem may meritconsideration as a statewide policy matter, and sug-gest to the Judicial Council that it establish a task

force for that purpose.

IMarilyn and Jeffrey Elkins were married on

April 20, 1980. They had one child, who was bornin 1991. After Marilyn subsequently instituted mar-ital dissolution proceedings, the issue of date ofseparation was bifurcated and tried first. Propertyissues were to be tried on September 19, 2005.

The matter proceeded subject to a local rule ofcourt providing that at trials in dissolution matters,“[d]irect examination on factual**163 matters shallnot be permitted except in unusual circumstances orfor proper rebuttal. The Court may decide contestedissues on the basis of the pleadings submitted bythe parties without live testimony.” (Super. Ct.Contra Costa County, Local Rules, former rule12.5(b)(3), eff. July 1, 2005.) In addition, the ruleprovided that “[s]ubject to legal objection, amend-ment, and cross-examination, all declarations shallbe considered received in evidence at the hearing.”(Ibid.) Under the rule, a party's failure to ***487file responsive pleadings, including declarations, inthe time prescribed by the rules authorized the courtto “permit the matter to proceed as a default,” or or-der a continuance and impose a monetary sanctionon the “untimely party.” (Id., former rule12.5(b)(4).)

*1347 A trial scheduling order (TSO or order)imposed additional restrictions and sanctions. Likethe rule, it ordered that all direct testimony at trialbe presented prior to trial in the form of declara-tions “filed in lieu of oral direct testimony, subjectto cross-examination.” Indeed, even if a party's wit-ness refused to sign a declaration, the party was re-quired to file an unsigned declaration.

Under the TSO, the parties were ordered to fileinitial declarations executed by themselves and bytheir witnesses 10 court days prior to trial, alongwith trial briefs. The order provided that the declar-ations were to “explain” the appended complete setof trial exhibits, and that “[a]ny required eviden-tiary foundation for admission of the proposed ex-

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hibits shall be completely set forth in the declara-tion(s).”

Sanctions for failure to comply with the TSOwere severe. “Failure to provide initial declarationsmay result in there being no direct testimony onthat issue and issue sanctions may result. Failure tofile a trial brief indicates to the court that no casesare being relied on by that side. Failure to provide adeclaration because a witness refused to sign itshall not excuse the filing of [any] unsigned declar-ations.” (Italics added.)

The TSO directed the parties to file responsivedeclarations and exhibits five court days prior totrial, along with any objections to exhibits, as wellas responsive briefs and any demands for the pro-duction of declarants for the purpose of cross-examination. The TSO concluded with the follow-ing warning: “Failure to comply with these require-ments will constitute good cause to exclude evid-ence or testimony at trial and/or to make adverseinferences or findings of fact against the non-complying party.”

Marilyn, who was represented by counsel, filedher declaration, exhibits, and trial brief on Septem-ber 2, 2005, and her responsive declaration onSeptember 8, 2005. Jeffrey, who was not represen-ted by counsel, filed his trial brief and declarationon September 2, 2005. He failed to attach his exhib-its, however, and his binder of 36 exhibits was notdelivered to the court and to opposing counsel untilone court day prior to the date set for trial.

According to Marilyn's declaration, the issuesto be determined at trial included (1) valuation anddisposition of the family home; (2) Jeffrey's right toreimbursement for postseparation improvements tothe home; (3) the characterization and division of amultimillion-dollar litigation settlement awarded toJeffrey's business; (4) the amount of Jeffrey's in-come from specified sources; (5) the characteriza-tion and division of assets withdrawn by Jeffreyfrom community accounts; (6) division of a retire-ment account held in Marilyn's name; (7) the status

of certain property declared to be the separate*1348 property of Marilyn; (8) division of the con-tents of a joint safe deposit box; and (9) Marilyn'sattorney fees. The issue of child support was re-served, and the parties waived spousal support.

The matter came on for trial. Counsel for Mar-ilyn objected to all but two of Jeffrey's exhibits be-cause, contrary to the TSO, Jeffrey's declarationfailed to refer to the exhibits or offer a basis fortheir admission into evidence. The court had not re-ceived its copy of Jeffrey's declaration or exhibitswhen trial began, forcing it to review Jeffrey's copyon the bench. Marilyn's***488 counsel announcedhe would not cross-examine Jeffrey if the court sus-tained counsel's objection to Jeffrey's exhibits, andasserted that Jeffrey therefore was “not entitled tooffer any further evidence.”

**164 When Jeffrey explained that the proced-ure he had followed was the same he had engagedin at the trial of the bifurcated issue of the date ofseparation, the court admonished Jeffrey that hehad misunderstood the objection raised by Mar-ilyn's counsel. The court explained: “In order to geta document admitted into evidence under the trialscheduling order ... it says that the evidentiary basisand foundation for each exhibit must be set forth inthe declaration so the other side can object to see,you know, if exhibits have an evidentiary basis ornot. And [Marilyn's counsel is] saying that thoseexhibits don't have any foundation in your declara-tion. [¶] So if you can point me to the foundationsin your declarations, then we—we'll dispose of thatargument quickly[.] If not those—those exhibitsthat don't have an evidentiary foundation will bestricken.” (Italics added.)

The court provided a “typical example of whatI'm talking about with foundation,” noting that Jef-frey's proposed exhibit No. 5 was not referred to inJeffrey's declaration, “[s]o there's no way of know-ing what this document is without any testi-mony—direct testimony saying what this is or whatit purports to [be ].” (Italics added.) Jeffrey attemp-ted to explain that his exhibit No. 5 “refers to an ac-

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counting given to my wife—given by my wife tome, and this document is in relation to that.”

The court responded: “I understand that. I'vealready reviewed your declaration. Tentatively, Iam going to rule in favor of [Marilyn]. I'm going toallow you at one of the breaks that we have so asnot to disrupt the flow right now to rethink your ar-gument and give me the specific evidentiary found-ations for these documents, but I don't see it in yourdeclaration. Particularly, the one we were specific-ally taking about, Exhibit 5, I don't see any specificreference to it in your declaration. There's a gener-al reference to a general category.” (Italics added.)Jeffrey responded: “Your Honor, there are no spe-cific references in any document.” The court, afterasking Jeffrey not to interrupt, continued: “There'sa general reference, and under that general *1349category, arguably, every document that's ever beenfiled in this case would be generally referred to, butwhat's required under the trial scheduling order arethe specific evidentiary foundations so that I canrule on them. [¶] There being no evidentiary sup-port for [Jeffrey's exhibits] with the exception ofExhibit 3 and 12 [to which counsel for Marilyn hadnot objected because the foundation for the evid-ence appeared in Jeffrey's declaration], the objec-tions will be sustained tentatively subject to furtherargument after the morning break.” (Italics added.)No such break ensued.

Marilyn's declaration and exhibits were admit-ted into evidence, and she rested her case. Counselfor Marilyn objected to any consideration of theproposed order filed by Jeffrey because the filing ofthat document was untimely under the TSO.

The court stated its understanding, based uponJeffrey's declaration, that Jeffrey did not wish tocross-examine Marilyn and that he consented to adissolution of the marriage. Jeffrey stated he wasresting his case. The court confirmed that Jeffreyhad withdrawn his request to cross-examine Mar-ilyn, and Jeffrey added that he also wished to with-draw his request to cross-examine expert witnessEggers. The court stated: “Well, before you rest,

I'm assuming you would like to admit into evidenceyour declaration,” but Jeffrey***489 stated he didnot wish to do so. Accordingly, Jeffrey's declara-tion was not admitted into evidence. Withoutproviding the anticipated “morning break,” thecourt invited closing argument. Although observingthat the trial was proceeding “quasi by default, so tospeak,” the court stated that both parties still shouldaddress the subjects of “the furniture lists” and thecontents of the safe deposit box. Counsel for Mar-ilyn responded that those issues had been settled bystipulation prior to trial.

Jeffrey confirmed the stipulations and furtheroffered to relinquish his interest in the family homeand in his automobile. The court responded that Jef-frey's offer was too drastic and that the court wouldpermit him to reconsider, stating that the courtwould “render a decision along the lines of[Marilyn's counsel's] proposed order after trial, des-pite your request here, because that was not whatwas before me to be tried today. And so the tenor ofwhat you've just said is in **165 contrast to the de-claration that you submitted to me that I preppedon, your trial brief....”

Jeffrey responded that he was not referring tothe proposed order he had submitted prior to trial.He declared: “My concern is that I came into thetrial with the intent of presenting my position, andI'm being cut out of that completely with only reli-ance on two exhibits which are—no way can defendmy position. So I might as well give up my positionand leave it to the best well-being of my family.”(Italics added.)

*1350 The court responded that Jeffrey wouldbe well advised to secure legal counsel, and that theexclusion of Jeffrey's exhibits would not lead to anorder depriving him of his interest in the familyhome, referring again to the proposed order submit-ted prior to trial by Marilyn's counsel. Jeffrey re-sponded: “Your Honor, if you take a spreadsheetand you add up and deduct everything that [counselfor Marilyn] is asking for, I am left with nothing.Zero dollars. Zero house. Zero car. Nothing. So

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what's the difference?”

The court took the matter under submission.Marital status was terminated, and additional issueswere reserved for future trial. The court asked theparties to decide by the end of the week whether tosubmit a settlement agreement (presumably reflect-ing Jeffrey's last-minute waiver of any interest inthe community property) or instead to ask the courtto rule upon the proposed orders that were submit-ted to the court prior to trial. Apparently the partiesselected the latter option; on October 3, 2005, thecourt filed a final disposition of the property issuesstill reflecting Jeffrey's half-interest in the familyhome. The order noted the parties' stipulation con-cerning child custody and visitation and the court'sreservation of jurisdiction over the matter of childsupport. By further stipulation, the parties waivedspousal support, and the court's jurisdiction overthat issue was terminated. The community interestin Marilyn's retirement account was divided, andthe court resolved the additional property issuesidentified in Marilyn's declaration in a manner sub-stantially reflecting the order proposed by Marilyn.

Jeffrey filed a petition for writ of mandate orprohibition in the Court of Appeal. He asserted thatthere was no statutory authority for the local ruleand order preventing the parties from presenting thedirect examination of witnesses and requiring theevidentiary foundation for proposed exhibits to beestablished in a declaration filed well in advance oftrial. He further argued that the local rule and orderestablished a system of “trial by declaration” thatviolated due process principles and placed an“unreasonable burden” on litigants. Jeffrey's peti-tion also contended ***490 that the sanctions estab-lished by the rule and order were inconsistent withthe policy favoring trial on the merits, and that theirenforcement by the trial court constituted an abuseof discretion requiring reversal of the judgment thatresolved the parties' community property dispute.

The Court of Appeal summarily denied the pe-tition. We subsequently granted petitioner's petitionfor review and ordered the Contra Costa County

Superior Court to show cause why the challengedlocal rule and trial scheduling order should not bedeemed invalid for the reasons stated in the *1351petition for writ of mandate or prohibition.FN3 Pri-or to hearing oral argument, this court requestedand received briefing on the question whether thelocal rules and order conflicted with the hearsayrule. (Evid.Code, § 1200.)

FN3. Thereafter, we invited and receivedamicus curiae briefs from the Family LawSection of the Contra Costa County BarAssociation, the California Association ofCertified Family Law Specialists, and theNorthern and Southern California Chaptersof the American Academy of MatrimonialLawyers, who were joined in their brief insupport of petitioner by the Los AngelesCounty Bar Association, the Los AngelesCounty Bar Association Family Law Sec-tion, the Orange County Bar Association,the Honorable Donald B. King, Justice ofthe First District Court of Appeal(Retired), the Honorable Sheila Prell Son-enshine, Justice of the Fourth DistrictCourt of Appeal (Retired), the HonorableJ.E.T. Rutter, Judge of the Orange CountySuperior Court (Retired), and the Honor-able Richard Denner, Judge of the LosAngeles County Superior Court (Retired).

IIA

[1][2] As respondent court asserts, trial courtspossess inherent rulemaking authority **166 aswell as rulemaking authority granted by statute. (Rutherford v. Owens–Illinois, Inc. (1997) 16Cal.4th 953, 967, 67 Cal.Rptr.2d 16, 941 P.2d 1203(Rutherford ); Code Civ. Proc, §§ 128, 177, 575.1;Gov.Code, § 68070.) “It is ... well established thatcourts have fundamental inherent equity, supervis-ory, and administrative powers, as well as inherentpower to control litigation before them. [Citation.]... ‘... That inherent power entitles trial courts to ex-ercise reasonable control over all proceedings con-

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nected with pending litigation ... in order to insurethe orderly administration of justice. [Citation.]’ ” (Rutherford, supra, 16 Cal.4th at p. 967, 67Cal.Rptr.2d 16, 941 P.2d 1203.)

[3] The scope of a court's inherent rulemakingauthority has been discussed in various decisions(see, e.g., Rutherford, supra, 16 Cal.4th at pp.967–968, 67 Cal.Rptr.2d 16, 941 P.2d 1203), andthe outer limits of such authority are clear.FN4 Atrial court is without authority to adopt local rulesor procedures that conflict with statutes or withrules of court adopted by the Judicial Council, orthat are inconsistent with the Constitution or caselaw. (Rutherford, supra, at pp. 967–968, 67Cal.Rptr.2d 16, 941 P.2d 1203; see also Hall v. Su-perior Court (2005) 133 Cal.App.4th 908, 916–918,35 Cal.Rptr.3d 206.) As provided in GovernmentCode section 68070, subdivision (a): “Every courtmay make rules for its own government and thegovernment of its officers not inconsistent with lawor with the rules adopted and prescribed by the Ju-dicial Council. ” (Italics added; see also 2 Witkin,Cal. Procedure (4th ed. 1996) Courts, § 204, p. 272;id. (2006 supp.) § 204, *1352 pp. 87–88.) In sum,***491 local courts may not create their own rulesof evidence and procedure in conflict withstatewide statutes.

FN4. In speaking of the limits of a trialcourt's authority, we note that constitution-al issues concerning separation of powersbetween the judicial branch and the legis-lative branch are not involved in thepresent case. (See, e.g., Superior Court v.County of Mendocino (1996) 13 Cal.4th45, 51 Cal.Rptr.2d 837, 913 P.2d 1046.)

Reviewing courts have not hesitated to strikedown local court rules or policies on the groundthey are inconsistent with statute, with CaliforniaRules of Court promulgated by the Judicial Coun-cil, or with case law or constitutional law. Appel-late decisions have invalidated local rules or restric-ted their application in many areas of affected litig-ation, including dissolution actions,FN5 litigation

under the Trial Court Delay Reduction Act (Gov.Code § 68600 et seq.) (fast track litigation),FN6 complex litigation (Cal. Rules of Court, rule3.400 et seq.),FN7 and general civil litigation.FN8

We also have disapproved**167 rules and proced-ures adopted by the Courts of Appeal (see People v.Pena (2004) 32 Cal.4th 389, 400, 9 Cal.Rptr.3d107, 83 P.3d 506), as well as rules adopted by theJudicial Council. (See People v. Hall (1994) 8Cal.4th 950, 963, 35 Cal.Rptr.2d 432, 883 P.2d974.)

FN5. In Hogoboom v. Superior Court(1996) 51 Cal.App.4th 653, 656, 59Cal.Rptr.2d 254, for example, the review-ing court invalidated a trial court rule im-posing its own family law mediation fee inaddition to fees specifically established bystatute. In McLaughlin v. Superior Court(1983) 140 Cal.App.3d 473, 481, 189Cal.Rptr. 479, the reviewing court heldthat a local rule denied due process of lawin purporting to permit a custody mediatorto make a written recommendation to thecourt without providing a factual basis andwithout facing cross-examination.

FN6. See Boyle v. CertainTeed Corp.(2006) 137 Cal.App.4th 645, 655, 40Cal.Rptr.3d 501 (local courts cannotshorten the statutory notice period or alterstandards for production of evidence forsummary judgment hearings); Hock v. Su-perior Court (1990) 221 Cal.App.3d 670,673–674, 270 Cal.Rptr. 579 (invalidatinglocal fast track rule under which counselcould not be substituted subsequent to trialsetting conference without court's approv-al).

FN7. See First State Ins. Co. v. SuperiorCourt (2000) 79 Cal.App.4th 324, 336, 94Cal.Rptr.2d 104 (invalidating trial court'scase management order that prohibited fil-ing motions for summary judgment absentcompliance with various nonstatutory con-

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ditions).

FN8. See Thatcher v. Lucky Stores, Inc.(2000) 79 Cal.App.4th 1081, 1086, 94Cal.Rptr.2d 575 (local rule authorizinggranting motion for summary judgmentbased solely on the absence of oppositionwas inconsistent with applicable statute);Pacific Trends Lamp & Lighting Products,Inc. v. J. White, Inc. (1998) 65 Cal.App.4th1131, 1135–1136, 76 Cal.Rptr.2d 918(local rule improperly required parties to“meet and confer” prior to filing motionfor new trial; sanctions for violation of loc-al rule were inconsistent with statutoryprocedure); Sierra Craft, Inc. v. MagnumEnterprises, Inc. (1998) 64 Cal.App.4th1252, 1255–1256, 75 Cal.Rptr.2d 681(local rule improperly permitted grant ofsummary judgment on grounds inconsist-ent with statute); Kalivas v. Barry ControlsCorp. (1996) 49 Cal.App.4th 1152, 1158,57 Cal.Rptr.2d 200 (Kalivas ) (local rulegoverning summary judgment requiringthat parties file joint statement of disputedand undisputed facts was invalid because itwas inconsistent with statute); Wells FargoBank v. Superior Court (1988) 206Cal.App.3d 918, 922–923, 254 Cal.Rptr.68 (invalidating local rule requiring“extensive” or “complicated” motions forsummary judgment to be specially set un-der notice period shorter than that estab-lished by statute); St. Vincent MedicalCenter v. Superior Court (1984) 160Cal.App.3d 1030, 1033–1034, 206Cal.Rptr. 840 (invalidating trial-set-ting-conference order shortening time forexchange of expert witness lists to lessthan what was provided by statute).

*1353 A common theme in the appellate de-cisions invalidating local rules, and one that alsoappears in the present case, is that a local court hasadvanced the goals of efficiency and conservation

of judicial resources by adopting procedures thatdeviated from those established by statute, therebyimpairing the countervailing interests of litigants aswell as the interest of the public in being affordedaccess to justice, resolution of a controversy on themerits, and a fair proceeding.

***492 In Lammers v. Superior Court (2000)83 Cal.App.4th 1309, 100 Cal.Rptr.2d 455, for ex-ample, a local court rule governing family law pro-ceedings required the parties to file a timely requestthat the court review the case file prior to a hearingon a contested matter. In order to avoid obviousconstitutional issues, the reviewing court refused toendorse the trial court's view that the local rule re-lieved the court of the obligation to read the casefile at all when the request to do so was untimely.The Court of Appeal explained that “a measure im-plemented for the sake of efficiency cannot jeop-ardize the constitutional integrity of the judicialprocess [citation]. In other words, court congestionand ‘the press of business' will not justify deprivingparties of fundamental rights and a full and fair op-portunity to present all competent and materialevidence relevant to the matter to be adjudicated.” (Id. at p. 1319, 100 Cal.Rptr.2d 455.) FN9

FN9. See Lokeijak v. City of Irvine (1998)65 Cal.App.4th 341, 342, 76 Cal.Rptr.2d429 (disapproving a local court policy dis-couraging the filing of motions for sum-mary judgment because, according to thelocal courts, the statutory procedure was“unduly time consuming”); Jovine v. FHP,Inc. (1998) 64 Cal.App.4th 1506, 1532, 76Cal.Rptr.2d 322 (trial court's policy of re-ferring summary judgment motions to areferee did not comport with statute; “‘[e]fficiency is not more important thanpreserving the constitutional integrity ofthe judicial process' ”); see also Mediter-ranean Construction Co. v. State FarmFire & Casualty Co. (1998) 66Cal.App.4th 257, 265, 77 Cal.Rptr.2d 781(trial court erred in declining to hear oral

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argument on a motion for summary judg-ment; reviewing court urged trial courtsnot to “elevate judicial expediency over [astatutory] mandate”).

This court made similar observations in Garciav. McCutchen (1997) 16 Cal.4th 469, 66Cal.Rptr.2d 319, 940 P.2d 906 (Garcia ), involvingfast track litigation. (Gov.Code § 68600 et seq.) Weconcluded a trial court was without authority to dis-miss an action for failure to comply with local fasttrack rules, because such a dismissal contravened astatute establishing that sanctions for failure tocomply with these rules should fall on counsel, andnot on the party, if counsel was responsible for thefailure to comply. (Garcia, supra, 16 Cal.4th at p.471, 66 Cal.Rptr.2d 319, 940 P.2d 906.)

We rejected the trial court's argument that suchpower to dismiss was essential to serve the goal ofreducing delay in litigation. We pointed out that theTrial Court Delay Reduction Act did not elevatedelay reduction over the right of a litigant topresent his or her case to the court, nor was delay*1354 reduction favored over deciding cases on themerits. “ ‘Cases filed in California's trial courtsshould be resolved as expeditiously as possible,consistent with the obligation of the courts to givefull and careful consideration to the issues presen-ted, and consistent with the right of parties to ad-equately prepare and present their cases to thecourts. ’ [Citation.] Thus, in establishing delay re-duction programs, the Legislature recognized com-peting public policy considerations and‘attempt[ed] to balance the need for expeditiousprocessing of civil matters with the rights of indi-vidual litigants.’ [Citation.]” (Garcia, supra, 16Cal.4th at pp. 479–480, 66 Cal.Rptr.2d 319, 940P.2d 906.)

B[4] Although some informality and flexibility

have been accepted in marital dissolution**168proceedings, such proceedings are governed by thesame statutory rules of evidence and procedure thatapply in other civil actions (with exceptions inap-

plicable to the present case). The Family Code es-tablishes as the law of the state—and superiorcourts are without authority to adopt rules that devi-ate from this law—that except as otherwiseprovided by statute***493 or rule adopted by theJudicial Council, “the rules of practice and proced-ure applicable to civil actions generally ... apply to,and constitute the rules of practice and procedurein, proceedings under [the Family Code].” (Fam.Code, § 210; In re Marcus (2006) 138Cal.App.4th 1009, 1017, 41 Cal.Rptr.3d 861; In reMarriage of Mallory (1997) 55 Cal.App.4th 1165,1170, 64 Cal.Rptr.2d 667; cf. Fewel v. Fewel(1943) 23 Cal.2d 431, 438–439, 144 P.2d 592(conc. opn. of Traynor, J.) (Fewel ); see also 11Witkin, Summary of Cal. Law (10th ed. 2005) Hus-band and Wife, § 99, pp. 152–154; Hogoboom &King, Cal. Practice Guide: Family Law (The RutterGroup 2007), ¶¶ 13:80, 13:81, pp. 13–22–13.23;Samuels & Mandabach, Practice Under the Cal.Family Code (Cont.Ed.Bar 2007) §§ 16.3–16.5, pp.745–746.)

The rule and order that were applied in thepresent case called for the admission of declara-tions in lieu of direct testimony at trial. It is well es-tablished, however, that declarations constitutehearsay and are inadmissible at trial, subject to spe-cific statutory exceptions, unless the parties stipu-late to the admission of the declarations or fail toenter a hearsay objection. (Evid.Code, § 1200; Lac-rabere v. Wise (1904) 141 Cal. 554, 556–557, 75 P.185 (Lacrabere ); see also Estate of Fraysher(1956) 47 Cal.2d 131, 135, 301 P.2d 848; Fewel,supra, 23 Cal.2d at pp. 438–439, 144 P.2d 592(conc. opn. of Traynor, J.); Pajaro Valley WaterManagement Agency v. McGrath (2005) 128Cal.App.4th 1093, 1107, 27 Cal.Rptr.3d 741;Windigo Mills v. Unemployment Ins. Appeals Bd.(1979) 92 Cal.App.3d 586, 597, 155 Cal.Rptr. 63;Reifler v. Superior Court (1974) 39 Cal.App.3d479, 484–485, 114 Cal.Rptr. 356 (Reifler ); In reEstate of Horman (1968) 265 Cal.App.2d 796, 805,71 Cal.Rptr. 780.)

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*1355 The law provides specific exceptions tothe general rule excluding hearsay evidence (see,e.g., Evid.Code, § 1220 et seq.), including thosegoverning the admission of affidavits or declara-tions. For example, in the marital dissolution con-text, Family Code section 2336 requires variousitems of proof of fact to be submitted to the court insupport of a default judgment and requires suchproof to be in the form of an affidavit. (Fam.Code,§ 2336, subd. (a).) But there is no general statutoryexception to the hearsay rule for contested maritaldissolution trials. On the contrary, the existence ofa specific statutory exception for default judgments,where an adversary proceeding is waived or for-feited, only serves to support the general rule thathearsay declarations are inadmissible at contestedmarital dissolution trials.

Another statutory exception to the hearsay rulepermits courts to rely upon affidavits in certain mo-tion matters. (Code Civ. Proc, § 2009.) FN10 Al-though affidavits or declarations are authorized incertain motion matters under Code of Civil Proced-ure section 2009, this statute does not authorizetheir admission at a contested trial leading to judg-ment. As this court explained in Lacrabere, supra,141 Cal. 554, 75 P. 185, Code of Civil Proceduresection 2009 “has no application to the proof offacts which are directly in controversy in an action.It was not intended to have the effect of changingthe general rules of evidence by substituting volun-tary ex parte affidavits for the testimony of ***494witnesses. The section only applies to matters ofprocedure—matters collateral, ancillary, or incid-ental to an action or proceeding—and has no rela-tion to proof of facts the existence of which aremade issues in the case, and which it is necessaryto establish to sustain a cause of action. ” (Lac-rabere, supra, at pp. 556–557, 75 P. 185, italics ad-ded; see also **169Fewel, supra, 23 Cal.2d at p.438, 144 P.2d 592 (conc. opn. of Traynor, J.) [“Thefact that section 2009 permits [the admission of af-fidavits] ‘upon a motion’ does not mean that the is-sues in a contested case may be determined and ajudgment rendered on the basis of written state-

ments of parties not before the court”]; Hogoboom& King, Cal. Practice Guide: Family Law, supra, ¶13:106, p. 13–30.)

FN10. Code of Civil Procedure section2009 provides: “An affidavit may be usedto verify a pleading or a paper in a specialproceeding, to prove the service of a sum-mons, notice, or other paper in an action orspecial proceeding, to obtain a provisionalremedy, the examination of a witness, or astay of proceedings, and in uncontestedproceedings to establish a record of birth,or upon a motion, and in any other case ex-pressly permitted by statute. ” (Italics ad-ded.)

The same point was emphasized in Reifler,supra, 39 Cal.App.3d 479, 114 Cal.Rptr. 356. Inthat case the Court of Appeal considered a chal-lenge to a Los Angeles Superior Court policy of ad-judicating long-cause hearings on postjudgmentmotions in marital dissolution matters solely on thebasis of affidavits. The reviewing court acknow-ledged that affidavits ordinarily are excluded ashearsay, but concluded Code of Civil Proceduresection 2009 provides a hearsay exception thatgrants a trial court discretion to decide motions onthe *1356 basis of affidavits—even when facts arecontroverted—but only so long as the controvertedfacts do not require factfinding resulting in a judg-ment. (Reifler, supra, at pp. 484–485, 114 Cal.Rptr.356.) The court expressed no doubt that hearsaywas inadmissible at a contested marital dissolutiontrial.

A recent decision by this court demonstratesthe limited application of Code of Civil Proceduresection 2009, and also illuminates the policy under-lying application of the hearsay rule when questionsof credibility arise, as they certainly do in dissolu-tion trials. (People v. Johnson (2006) 38 Cal.4th717, 42 Cal.Rptr.3d 887, 133 P.3d 1044 (Johnson ).) In Johnson, we concluded that at a pretrial hearingon a motion to suppress evidence in a criminal case(Pen.Code, § 1538.5), the prosecution cannot carry

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its burden by submitting affidavits in lieu of livetestimony. The pertinent statute, Penal Code section1538.5, did not provide for such a procedure, andthe historic practice long had been to require oraltestimony. (Johnson, supra, 38 Cal.4th at pp. 726,728, 42 Cal.Rptr.3d 887, 133 P.3d 1044.)

Moreover, as we explained in Johnson,“allowing a prosecutor to oppose a suppression mo-tion with written affidavits in lieu of live testimonywould be inconsistent with the trial court's vitalfunction of assessing the credibility of witnesses.” (Johnson, supra, 38 Cal.4th. at p. 729, fn. 8, 42Cal.Rptr.3d 887, 133 P.3d 1044; see id. at p. 726,42 Cal.Rptr.3d 887, 133 P.3d 1044.) A suppressionmotion “presents issues as to which the credibilityof witnesses often is of critical significance” (id. atp. 731, 42 Cal.Rptr.3d 887, 133 P.3d 1044), and thewitness's personal presence and oral testimony issignificant because it “ ‘enable[s] the trier of fact toconsider the demeanor of the witness in weighinghis testimony and judging his credibility.’ ” (Id. atp. 733, 42 Cal.Rptr.3d 887, 133 P.3d 1044.)

We also observed in Johnson that, unlike a pre-trial suppression motion, the motions referred to inCode of Civil Procedure section 2009 are on“preliminary or ancillary procedural matters” thathistorically have been decided on the basis of affi-davits alone, whereas it is well settled that section2009 does not change the rules of evidence. (John-son, supra, 38 Cal.4th at p. 730, 42 Cal.Rptr.3d887, 133 P.3d 1044.) Quoting Lacrabere, supra,141 Cal. 554, 75 P. 185, we confirmed that ***495section 2009 “ ‘has no relation to proof of facts theexistence of which are made issues in the case, andwhich it is necessary to establish to sustain a causeof action. ’ ” (Johnson, supra, at p. 730, 42Cal.Rptr.3d 887, 133 P.3d 1044, italics added.)

We conclude that respondent's rule and orderare inconsistent with the hearsay rule to the extentthey render written declarations admissible as abasis for decision in a contested marital dissolutiontrial. As we shall discuss, our conclusion is consist-ent with fundamental principles established in other

statutes. All relevant evidence is admissible, includ-ing evidence bearing on the issue of witness credib-ility (Evid.Code, §§ 210, 351), and the oral testi-mony of witnesses supplies valuable evidence rel-evant to credibility, *1357 a critical issue in manymarital dissolution trials. Permitting oral testimonyrather than relying upon written declarations also isconsistent with the historically and statutorily ac-cepted practice of conducting trial by means of theoral testimony of witnesses given in the presence ofthe trier of fact. (See Evid.Code, §§ 711, 780; Codeof Civ. Proc., §§ 2002, 2005.) The conclusion**170 we reach also permits us to avoid the diffi-cult question whether the local rule and order viol-ate petitioner's right to due process of law,“[m]indful [as we are] of the prudential rule of judi-cial restraint that counsels against rendering a de-cision on constitutional grounds if a statutory basisfor resolution exists.” (NBC Subsidiary(KNBC–TV), Inc. v. Superior Court (1999) 20Cal.4th 1178, 1190, 86 Cal.Rptr.2d 778, 980 P.2d337.) This rule directs that “if reasonably possible,statutory provisions should be interpreted in a man-ner that avoids serious constitutional questions.” (Id. at p. 1197, 86 Cal.Rptr.2d 778, 980 P.2d 337.)

As noted, evidence bearing on the issue ofcredibility of witnesses comes within the basic rulethat all relevant evidence is admissible, except asspecifically provided by statute. (Evid.Code, §§ 210, 351.) Describing a party's fundamental right topresent evidence at trial in a civil case, Witkin ob-serves: “One of the elements of a fair trial is theright to offer relevant and competent evidence on amaterial issue. Subject to such obvious qualifica-tions as the court's power to restrict cumulative andrebuttal evidence [citation], and to exclude undulyprejudicial matter [citation], denial of this funda-mental right is almost always considered reversibleerror. [Citations.]” (3 Witkin, Cal. Evidence (4thed. 2000) Presentation at Trial, § 3 pp. 28–29, ital-ics added.) Ordinarily, parties have the right totestify in their own behalf ( Guardianship of Waite(1939) 14 Cal.2d 727, 730, 97 P.2d 238), and aparty's opportunity to call witnesses to testify and

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to proffer admissible evidence is central to havinghis or her day in court. (Kelly v. New West FederalSavings (1996) 49 Cal.App.4th 659, 677, 56Cal.Rptr.2d 803; see Spector v. Superior Court(1961) 55 Cal.2d 839, 843, 844, 13 Cal.Rptr. 189,361 P.2d 909.)

As stated by an appellate court in 1943 withreference to a trial court's refusal to permit a wit-ness to testify in a marital dissolution matter: “Weare fully cognizant of the press of business presen-ted to the judge who presides over the DomesticRelations Department of the Superior Court ..., andhighly commend his efforts to expedite the hand-ling of matters which come before him. However,such efforts should never be directed in such man-ner as to prevent a full and fair opportunity to theparties to present all competent, relevant, and ma-terial evidence bearing upon any issue properlypresented for determination. [¶] Matters of domest-ic relations are of the utmost importance to theparties involved and also to the people of the Stateof California.... To this end a trial judge should notdetermine any issue that is ***496 presented for hisconsideration until he has heard all competent, ma-terial, and relevant *1358 evidence the parties de-sire to introduce.” (Shippey v. Shippey (1943) 58Cal.App.2d 174, 177, 136 P.2d 86, italics added.)

Oral testimony of witnesses given in the pres-ence of the trier of fact is valued for its probativeworth on the issue of credibility, because such testi-mony affords the trier of fact an opportunity to ob-serve the demeanor of witnesses. (Ohio v. Roberts(1980) 448 U.S. 56, 64, 100 S.Ct. 2531, 65 L.Ed.2d597.) A witness's demeanor is “part of the evid-ence” and is “of considerable legal consequence.” (People v. Adams (1993) 19 Cal.App.4th 412, 438,23 Cal.Rptr.2d 512; see Meiner v. Ford Motor Co.(1971) 17 Cal.App.3d 127, 140–141, 94 Cal.Rptr.702[“[O]ne who sees, hears and observes [a wit-ness] may be convinced of his honesty, his integ-rity, [and] his reliability ... because a great deal ofthat highly delicate process we call evaluating thecredibility of a witness is based on ... ‘intuition’ ”].)

The testimony of witnesses given on direct ex-amination is afforded significant weight at trial inascertaining their credibility; cross-examinationdoes not provide the sole evidence relevant to theweight to be accorded their testimony. “In a con-tested hearing, the precise words and demeanor of awitness during direct as well as cross-examinationbears on the credibility and weight the trier of factaccords the witness's testimony. Moreover, obser-vation of a witness on direct is important to theplanning and execution of effective cross-examination.” (Denny H. v. Superior Court (2005)131 Cal.App.4th 1501, 1513–1514, 33 Cal.Rptr.3d89.)

Ordinarily, written testimony is substantiallyless valuable for the purpose of evaluating credibil-ity. **171(Goldberg v. Kelly (1970) 397 U.S. 254,269, 90 S.Ct. 1011, 25 L.Ed.2d 287 [“Particularlywhere credibility and veracity are at issue ... writtensubmissions are a wholly unsatisfactory basis fordecision”]; Rosenthal v. Great Western Fin. Secur-ities Corp. (1996) 14 Cal.4th 394, 414, 58Cal.Rptr.2d 875, 926 P.2d 1061 [“ ‘it's pretty diffi-cult to weigh credibility without seeing the wit-nesses' ”].) “A prepared, concise statement read bycounsel may speed up the hearing, but it is no sub-stitute for the real thing. Lost is the opportunity forthe trier of fact and counsel to assess the witness'sstrengths and weaknesses, recollection, and at-tempts at evasion or spinning the facts.... [¶] ...[W]ith a scripted statement, prepared and agreed toby one party in advance, comes the passage of timeand with that lapse may come the party's unyieldingacceptance of the script. Lost to cross-examinationis the opponent's ability to immediately test anddissect adverse testimony.” (Denny H. v. SuperiorCourt, supra, 131 Cal.App.4th at p. 1514, 33Cal.Rptr.3d 89, italics omitted.)

The historical pattern of a trial as an oral exam-ination of witnesses in the presence of the trier offact rather than an exchange of written declarationsis *1359 reflected in Evidence Code section 711,which provides that “[a]t the trial of an action, a

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witness can be heard only in the presence and sub-ject to the examination of all the parties to the ac-tion, if they choose to attend and examine.” (Italicsadded.) Also in conformity with the historical formof a trial, Evidence Code section 780 directs the tri-er of fact to evaluate witness credibility by, amongother methods, observing the witness's demeanor “while testifying ” as well as his or her “attitude to-ward the action in which he testifies or toward thegiving of testimony.” (Italics added.)

Although Code of Civil Procedure section 2002provides that the testimony of a ***497 witnessmay be taken by affidavit,FN11 deposition,FN12 ororal examination, deposition testimony is admiss-ible at trial only as prescribed by certain statutesnot at issue in the present case. Moreover, affidavits(a term including declarations made under oath), asexplained, constitute hearsay and are inadmissibleat trial in the absence of stipulation or lack of ob-jection, or as otherwise provided by law.

FN11. An affidavit constitutes a “writtendeclaration under oath, made without no-tice to the adverse party.” (Code Civ.Proc., § 2003.)

FN12. A deposition constitutes “a writtendeclaration, under oath, made upon noticeto the adverse party, for the purpose of en-abling him to attend and cross-examine.” (Code Civ. Proc., § 2004; see Hogoboom &King, Cal. Practice Guide: Family Law,supra, ¶ 13:125, pp. 13–34–13–35 [use ofdiscovery at trial].)

The only remaining means recognized in Codeof Civil Procedure section 2002 for taking the testi-mony of a witness is oral examination. In a provi-sion that again reflects the historical form of the ad-versary trial in which live witnesses are examinedin the presence of the parties and the finder of fact,oral examination is defined as “an examination in[the] presence of the jury or tribunal which is to de-cide the fact or act upon it, the testimony beingheard by the jury or tribunal from the lips of the

witness. ” (Code Civ. Proc., § 2005, italics added.)FN13

FN13. Marilyn, real party in interest, con-tends “sworn declarations of witnessespresent at the trial and available for cross-examination are not hearsay....” Marilynreasons that when a declaration is properlysworn, the declarant becomes a witnesswho “testifies” within the meaning of Codeof Civil Procedure section 2002, and atleast as long as the declarant is present atthe hearing, the declaration does not fallwithin Evidence Code section 1200's pro-hibition on hearsay evidence. We agreewith the court in Schraer v. Berkeley Prop-erty Owners' Assn. (1989) 207 Cal.App.3d719, 255 Cal.Rptr. 453, which rejected asimilar argument that an affidavit itselfconstitutes “testimony” at a hearing. (Id. atp. 731, 255 Cal.Rptr. 453 [“Code of CivilProcedure section 2002 cannot be used toread into every other statutory use of theword ‘testimony’ a license to use affidavitsor deposition transcripts for all the samepurposes as oral examination”].)Moreover, as petitioner points out, Mar-ilyn's theory would authorize courts to ad-opt a system of trial by declaration in anycivil action, despite the restrictions ofCode of Civil Procedure section 2009 andthe hearsay rule.

In sum, consistent with the traditional conceptof a trial as reflected in provisions of the EvidenceCode and the Code of Civil Procedure, we *1360conclude that respondent's rule and order calling forthe admission and use of declarations at trial con-flict with the hearsay rule.

**172 CRespondent contends courts have authority to

adopt nonstatutory exceptions to the hearsay ruleand that prior decisions approve of such exceptionsin marital dissolution matters. Cases cited in sup-port of the latter proposition, however (see, e.g.,

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Reifler, supra, 39 Cal.App.3d 479, 114 Cal.Rptr.356), conclude that statutory authorization, namelyCode of Civil Procedure section 2009, exists for de-ciding motion matters in marital dissolution pro-ceedings on the basis of declarations. As we haveexplained, this statute does not authorize the intro-duction of hearsay evidence at a contested trial. Re-spondent has not offered any persuasive argumentin support of its claim that an individual local courtmay adopt a hearsay exception applicable solely tomarital dissolution trials despite state law providingthat marital dissolution proceedings are to be con-ducted in accordance with the ordinary rules gov-erning civil trials, except as specified by statute. (Fam.Code, § 210.) FN14

FN14. The same statutory provision de-feats respondent's claim that Englishtribunals historically resolved marital dis-solution actions in courts of equity, inwhich declarations assertedly served as theprimary basis for factfinding.

***498 Respondent relies upon this court's de-cision in In re Marriage of Brown & Yana (2006)37 Cal.4th 947, 38 Cal.Rptr.3d 610, 127 P.3d 28 (Brown & Yana ) for the proposition that courts havediscretion not to hold a full evidentiary hearing incontested family law matters. Respondent's relianceis misplaced, as we shall explain.

When parties have been unable (privately orthrough mediation) to agree on custody, “the courtshall set the matter for hearing on the unresolved is-sues.” (Fam.Code, § 3185, subd. (a).) It is undis-puted that such a hearing is an ordinary adversarialproceeding leading to a “final judicial custody de-termination.” (Brown & Yana, supra, 37 Cal.4th atp. 959, 38 Cal.Rptr.3d 610, 127 P.3d 28; see id. atpp. 955–956, 38 Cal.Rptr.3d 610, 127 P.3d 28;Montenegro v. Diaz (2001) 26 Cal.4th 249, 256,109 Cal.Rptr.2d 575, 27 P.3d 289; see also In reMarriage of Burgess (1996) 13 Cal.4th 25, 31–32,51 Cal.Rptr.2d 444, 913 P.2d 473.) But once ajudgment has been entered in the custody matter, apost-judgment motion or request for an order to

show cause for a change in custody, based upon anobjection to the custodial parent's plan to moveaway, requires an evidentiary hearing only if neces-sary —that is, only if the moving party is able tomake a prima facie showing that the move will bedetrimental to the child or has identified “a materialbut contested factual issue that should be resolvedthrough the taking of oral testimony.” (Brown &Yana, supra, 37 Cal.4th at p. 962, 38 Cal.Rptr.3d610, 127 P.3d 28; see id. at p. 959, 38 Cal.Rptr.3d610, 127 P.3d 28.)

*1361 Our decision in Brown & Yana, supra,37 Cal.4th 947, 38 Cal.Rptr.3d 610, 127 P.3d 28,did not suggest litigants must make a prima facieshowing of some kind in order to be entitled to pro-ceed to trial. Nothing we said undermines the re-quirement that at a contested marital dissolution tri-al, prior to entry of judgment, the court must holdan evidentiary hearing on the disputed issues, atwhich the usual rules of evidence apply. Indeed, weexplained that a trial court had authority to deny afull evidentiary hearing in Brown & Yana in partbecause the custody issue already had been fullylitigated and the resulting judgment therefore wasentitled to substantial deference in the absence of ashowing of a significant change of circumstances. (Id. at pp. 955–956, 959–960, 38 Cal.Rptr.3d 610,127 P.3d 28; see Burchard v. Garay (1986) 42Cal.3d 531, 535, 229 Cal.Rptr. 800, 724 P.2d 486[change of circumstances requirement is basedupon res judicata principles]; In re Marriage ofBurgess, supra, 13 Cal.4th at p. 38, 51 Cal.Rptr.2d444, 913 P.2d 473.) Nor did we discuss Code ofCivil Procedure section 2009 or the hearsay rule inthat case.FN15

FN15. Respondent also cites County ofAlameda v. Moore (1995) 33 Cal.App.4th1422, 40 Cal.Rptr.2d 18. In that case, thecourt determined that the informality offamily law proceedings had gone too farwhen disputed factual matters in a districtattorney's child support hearing were de-termined upon the mere unsworn state-

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ments of counsel. Although the court re-ferred to local rules applicable to familylaw motions and contested trials underwhich declarations could be admitted inevidence (id. at p. 1427 & fn. 5, 40Cal.Rptr.2d 18), the court did not considerEvidence Code section 1200, Code of CivilProcedure section 2009, or Family Codesection 210, provisions the court, ofcourse, lacked authority to disregard.County of Alameda v. Moore, supra, 33Cal.App.4th 1422, 40 Cal.Rptr.2d 18, isdisapproved to the extent it is inconsistentwith our opinion in the present case.

***499 **173 Respondent also refers to Evid-ence Code section 765 as authority to admit hearsaydeclarations as a means of presenting the testimonyof witnesses under direct examination. That statuteprovides in pertinent part: “The court shall exercisereasonable control over the mode of interrogationof a witness so as to make interrogation as rapid, asdistinct, and as effective for the ascertainment ofthe truth, as may be, and to protect the witness fromundue harassment or embarrassment.” (Evid.Code,§ 765, subd. (a).)

This provision never has been interpreted as af-fording a basis for disregarding the statutory rulesof evidence or working a fundamental alteration inthe nature of a trial. Respondent's argument wouldprove too much; under its analysis, Code of CivilProcedure section 2009 would be unnecessary, be-cause Evidence Code section 765 (a recodificationof former Code of Civil Procedure section 2044,enacted in 1872) would confer authority to conductany hearing or trial on the basis of affidavit evid-ence.

Respondent contends Evidence Code section765 should be interpreted to afford trial courts theauthority to require declarations in lieu of oral dir-ect examination of witnesses, because assertedlysimilar language in rule 611(a) *1362 of the Feder-al Rules of Evidence (28 U.S.C.) has been inter-preted to supply such authority to the federal

courts. (See In re Adair (9th Cir.1992) 965 F.2d777, 779.) Respondent does not claim, however,that federal procedure includes provisions similar toCode of Civil Procedure section 2009, permittingaffidavits in certain types of proceedings not lead-ing to judgment, nor does respondent compare therules of evidence and procedure we have discussedin the previous section of this opinion with the rulesapplicable in federal district courts. (Compare alsoFed. Rules Evid., rule 807, 28 U.S.C. [grantingcourts authority to admit reliable hearsay in thecourt's discretion].)

Respondent claims that if we conclude that de-clarations should be excluded as hearsay in con-tested marital dissolution trials, our decision willoverturn settled practice and cause serious disrup-tion. It does not appear, however, that respondent'sdescription of settled practice is accurate. As isevident from our consultation of treatises and prac-tice manuals, it is well settled that the ordinaryrules of evidence apply in marital dissolution trials.

“The same rules of evidence apply at trial in amarital action as in civil actions generally. Thus,facts must be established by admissible evidence,and objections must be properly stated and basedon the Evidence Code or other applicable statutesor court rules.... [¶] A litigant has a right to presentevidence at trial and, although the court can ex-clude otherwise admissible evidence because it isunduly time-consuming, prejudicial, confusing, ormisleading, outright denial of the right to presentevidence is error. [Citations.] The court's discretionto exclude oral testimony entirely ... does not applyto trials.” (Samuels & Mandabach, Practice Underthe California Family Code, supra, § 16.5, pp.745–746.) The same source recognizes that somecourts nonetheless attempt to place special restric-tions upon the introduction of evidence, noting that“[t]raditionally, trial judges have often regarded tri-als in marital actions as somehow less importantthan other civil litigation. This attitude has beenboth recognized and strongly criticized by appellatecourts. [Citations.]” (Id., § 16.10, p. 748; see also

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11 Witkin, Summary of Cal. Law, supra, Husbandand Wife, § 99, pp. 152, 154 [provisions governingcivil trials apply unless otherwise specified by stat-ute or Judicial Council rule, including the rules ofevidence].) Another practice manual explains: “At a***500 contested trial, affidavits are not competentevidence; though made under oath, they arehearsay....” (Hogoboom & King, Cal. PracticeGuide: Family Law, supra, ¶ 13:106, p. 13–30; seealso id., ¶ 13:81, p. 13–22.1.)

Commenting upon Justice Traynor's concurringopinion in Fewel, supra, 23 Cal.2d 431, 144 P.2d592, and this court's decision in Lacrabere, supra,141 Cal. 554, 75 P. 185, respondent asserts we havelimited the admissibility of declarations only whenthere is **174 no opportunity for cross-ex-amination. Although our decisions indeed havenoted the absence of an opportunity for cross-examination, more *1363 broadly they have inter-preted Code of Civil Procedure section 2009 as ap-plying solely to hearings on motions, and not to atrial of issues leading to a judgment. (See Lac-rabere, supra, 141 Cal. at pp. 556–557, 75 P. 185;see also Fewel, supra, 23 Cal.2d at pp. 438–439,144 P.2d 592 (conc. opn. of Traynor, J.).) Respond-ent also claims the opportunity for cross-ex-amination satisfies the policy underlying thehearsay rule. As we have explained, however, inaddition to allowing a party to cross-examine ad-verse witnesses, the hearsay rule assures that thewitness will appear in the presence of the trier offact on direct examination, thereby further aiding itin evaluating the witness's demeanor and determin-ing his or her credibility.

Marilyn contends that the distinction betweenhearings on motions (at which Reifler, supra, 39Cal.App.3d 479, 114 Cal.Rptr. 356, permits the in-troduction of hearsay evidence) and trials is illusoryin the context of marital dissolution proceedingsand should not be the basis for our decision in thepresent case. As she asserts, in many instances thefamily court retains jurisdiction over marital dissol-ution matters for an extended period, responding to

repeated motions for interim rulings and for modi-fication of orders. Yet we have drawn a distinctionbetween hearings at which a judgment is entered,and hearings on postjudgment motions. A postjudg-ment motion for modification of a final child cus-tody order, for example, requires the moving partyto demonstrate a significant change of circum-stances warranting departure from the judgment. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256,109 Cal.Rptr.2d 575, 27 P.3d 289.) A presumptionexists that the judgment is correct and should not bedisturbed—a presumption that would not be wellfounded were the judgment to be based uponhearsay (unless admitted into evidence upon stipu-lation of the parties). Marilyn fails to support herclaim that, for the purpose of the hearsay rule, thereis and should be no procedural or substantive dis-tinction between motions and trials in the context ofmarital dissolution proceedings.

D[5] Marilyn claims petitioner forfeited any

claim challenging respondent's rule barring oral ex-amination of witnesses on direct examination, be-cause he did not object on that basis. We do notagree that petitioner forfeited his claim. It shouldhave been evident to the trial court that petitioner'sinability to proceed stemmed both from the localrule precluding direct testimony and the order gov-erning the admissibility of evidence.

In any event, even if petitioner failed to pre-serve his claim with respect to the prohibition onoral examination of witnesses, he certainly objectedto the exclusion of nearly all of his evidence fornoncompliance with the court's trial scheduling or-der. The trial court abused its discretion in sanc-tioning petitioner by excluding the bulk of his evid-ence simply because he failed, *1364 prior to trial,to file a declaration establishing the admissibility ofhis trial ***501 evidence. The sanction was dispro-portionate and inconsistent with the policy favoringdetermination of cases on their merits.

[6] Although authorized to impose sanctionsfor violation of local rules (Code Civ. Proc., §

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575.2, subd. (a)), courts ordinarily should avoidtreating a curable violation of local procedural rulesas the basis for crippling a litigant's ability topresent his or her case. As the court declared inKalivas, supra, 49 Cal.App.4th 1152, 57Cal.Rptr.2d 200, in the absence of a demonstratedhistory of litigation abuse, “[a]n order based upon acurable procedural defect [including failure to file astatement required by local rule], which effectivelyresults in a judgment against a party, is an abuse ofdiscretion.” (Id. at p. 1161, 57 Cal.Rptr.2d 200.)

This court made a similar point in Mann v.Cracchiolo (1985) 38 Cal.3d 18, 210 Cal.Rptr. 762,694 P.2d 1134, in which an attorney failed to fileopposition to a motion for summary judgment with-in the time prescribed by local rules. We concludedthat the trial court abused its discretion in refusingto consider the tardy opposition. (Id. at p. 30, 210Cal.Rptr. 762, 694 P.2d 1134.) “ ‘Judges ... gener-ally prefer to avoid acting as automatons**175 androutinely reject requests by counsel to functionsolely in a ministerial capacity. Rigid rule follow-ing is not always consistent with a court's functionto see that justice is done. Cognizant of the strongpolicy favoring the disposition of cases on theirmerits [citations], judges usually consider whetherto exercise their discretion in applying local courtrules and frequently consider documents whichhave been untimely filed.’ ” (Id. at pp. 28–29, 210Cal.Rptr. 762, 694 P.2d 1134, italics added.) FN16

FN16. Terminating sanctions such as anorder granting summary judgment basedupon procedural error “ ‘have been held tobe an abuse of discretion unless the party'sviolation of the procedural rule was willful[citations] or, if not willful, at least pre-ceded by a history of abuse of pretrial pro-cedures, or a showing [that] less severesanctions would not produce compliancewith the procedural rule. [Citations.]’ ” (Parkview Villas Assn., Inc. v. State FarmFire & Casualty Co. (2005) 133Cal.App.4th 1197, 1215, 35 Cal.Rptr.3d

411; Security Pacific Nat. Bank v. Bradley(1992) 4 Cal.App.4th 89, 97–98, 5Cal.Rptr.2d 220 [“Sanctions which havethe effect of granting judgment to the otherparty on purely procedural grounds are dis-favored”].)

Even under the fast track statute, a demandingefficiency scheme that does not apply in family lawmatters (Gov.Code, §§ 68608, subd. (a), 68609,subd. (b)), the preference for trying cases on themerits prevails. For example, in Hernandez v. Su-perior Court (2004) 115 Cal.App.4th 1242, 9Cal.Rptr.3d 821, the reviewing court held that thetrial court abused its discretion in refusing, in reli-ance upon a local fast track rule, to reopen discov-ery. “Strict adherence to these delay reductionstandards has dramatically reduced trial court back-logs and increased the likelihood that matters willbe disposed of efficiently, to the benefit of everylitigant. [Citation.] Here, the trial court's orders pro-mote judicial efficiency by maintaining strict time*1365 deadlines. [¶] But efficiency is not an end initself. Delay reduction and calendar managementare required for a purpose: to promote the just res-olution of cases on their merits. [Citations.] Ac-cordingly, decisions about whether to grant a con-tinuance or extend discovery ‘must be made in anatmosphere of substantial justice. When the twopolicies collide head-on, the strong public policyfavoring disposition on the merits outweighs thecompeting policy favoring judicial efficiency.’ ” (Id. at p. 1246, 9 Cal.Rptr.3d 821.) The fast trackrules were not intended to override the strong pub-lic policy in favor of deciding cases on the ***502merits when possible (Garcia, supra, 16 Cal.4th atp. 479, 66 Cal.Rptr.2d 319, 940 P.2d 906), and wesee no basis for disregarding the same strong publicpolicy in marital dissolution actions.FN17

FN17. To demonstrate the harshness of re-spondent's application of its rule and order,we recall that under the fast track statutes,the burden of sanctions may not be im-posed upon the client if it was the attorney

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who was responsible for violating the fasttrack rules. (Gov.Code, § 68608, subd. (b);Garcia, supra, 16 Cal.4th at pp. 481–482,66 Cal.Rptr.2d 319, 940 P.2d 906.) Underthe fast track scheme, had Jeffrey beenrepresented and had his counsel been re-sponsible for making the mistakes attrib-uted to Jeffrey, the trial court would nothave been authorized to impose whatamounted to issue sanctions affecting themerits of Jeffrey's case.

In the present case, the trial court applied thesanction provision of its local rules in a mechanicalfashion without considering alternative measures ora lesser sanction, resulting in the exclusion of allbut two of petitioner's 36 exhibits. Had the courtpermitted petitioner to testify, he could haveprovided some foundation for his exhibits. In ap-plying the local rule and order mechanically to ex-clude nearly all of petitioner's evidence—and pro-ceeding, in the words of the trial court, “quasi bydefault”—the trial court improperly impaired peti-tioner's ability to present his case, thereby preju-dicing him and requiring reversal of the judgment.FN18

FN18. Respondent claims its efforts to as-sist petitioner were rejected, pointing to itsoffer to allow him to reconsider his posi-tion at a break in the court proceedings.But the court never announced a break, andthe record supports our view that at bestthe court merely offered petitioner an op-portunity to demonstrate that his declara-tion actually complied with the rule and or-der by providing a foundation in that docu-ment for the admission of his exhibits.

IIIRespondent claims “[f]irst and foremost” that

efficiency and the “expeditious resolution of familylaw cases” support its rule and order. It also seeksto justify these requirements**176 on the theorythat they serve to reduce rancor and “adversarialconfrontation between estranged spouses,” and to

assist the many self-represented litigants in thefamily law courts by “giving them direction as tohow to prepare for trial, how to frame issues prop-erly, and how to provide evidentiary support fortheir positions and ... avoid being ‘blindsided’ bythe adverse party.”

*1366 That a procedure is efficient and movescases through the system is admirable, but evenmore important is for the courts to provide fair andaccessible justice. In the absence of a legislative de-cision to create a system by which a judgment maybe rendered in a contested marital dissolution casewithout a trial conducted pursuant to the usual rulesof evidence, we do not view respondent's curtail-ment of the rights of family law litigants as justifiedby the goal of efficiency. What was observed threedecades ago remains true today: “While the speedydisposition of cases is desirable, speed is not al-ways compatible with justice. Actually, in its use ofcourtroom time the present judicial process seemsto have its priorities confused. Domestic relationslitigation, one of the most important and sensitivetasks a judge faces, too often is given the low-man-on-the-totem-pole treatment.” ( In re Marriageof Brantner (1977) 67 Cal.App.3d 416, 422, 136Cal.Rptr. 635.)

Moreover, the amicus curiae briefs we have re-ceived strongly dispute respondent's assertion thatits rule and order promote efficiency, reduce rancoror costs, promote settlement, or aid unrepresentedlitigants. In their brief, the Northern and ***503Southern California Chapters of the AmericanAcademy of Matrimonial Lawyers (Academy) ar-gue that the local rule and order only increase theburden on the trial courts and further strain limitedjudicial resources, because it is more time consum-ing for the court to examine lengthy declarationsthan it is to listen to testimony, leaving courts “withtwo options: (1) spend more time than they haveavailable at court to read the lengthy materials, or(2) just give the written materials a cursory review,and rule by ‘guesstimate.’ This is not a choicefavored by litigants, lawyers, or judicial officers.”

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The same brief characterizes as an “absurdity”respondent's claim that the rule and order help self-represented litigants by describing in detail howthey must prepare for trial. On the contrary, thebrief claims, “[t]he burdens created by the localcourt rule and [order] are so onerous that they over-whelm most attorneys, let alone self-represented lit-igants.” According to the Academy's brief, the ruleand order restrict access to justice by increasing thecost of litigation. The brief points to the addedcosts of preparing exhaustive declarations of all po-tential witnesses, including an evidentiary founda-tion for all proposed exhibits, and taking the depos-ition of nonparty witnesses in the event they refuseto prepare a declaration.

The Family Law Section of the Contra CostaCounty Bar Association commissioned a profes-sional survey of family law practitioners in thecounty, and the great majority of those surveyedwere decidedly critical of the rule and order, in-cluding the successor to the order at issue in thepresent case, believing the order did not increasejudicial efficiency and, along with their clients,questioning whether courts have the time to readthe voluminous *1367 binders of declarations andexhibits required by the rule. A substantial majorityof family law attorneys in the county also reportedfinding the rule and order inordinately time con-suming, difficult, and costly to comply with.FN19

FN19. The Association of Certified FamilyLaw Specialists (ACFLS) filed a brief gen-erally supporting petitioner's contentions.The ACFLS's brief also pointed to specificdifficulties caused by respondent's orderand rule. “With [respondent's] impositionof a discovery cut-off before any judiciallysupervised settlement, a litigant is forcedto either [forego] potentially necessary de-positions or [incur] unnecessary expense.This creates a larger schism in the ever-widening two-tiered justice system—thatfor litigants who can afford to opt out ofthe public court system and retain private

judges who do not impose unreasonableand arbitrary deadlines and that for thosewho cannot afford to do so.” Further, theACFLS complains that respondent's dead-lines are very difficult to meet. For ex-ample, a party's notice of intent to call theopposing party as a witness, along with adescription of “the testimony the party ex-pects to elicit,” is due the same day the ini-tial declarations are due. (Super. Ct. ContraCosta County, Local Rules, rule 12.8F.1.a) & b), eff. Jan. 1, 2007; ibid., eff. Ju-ly 1, 2006.)

**177 Respondent suggests its rule and orderencourage settlement by “ apprising both sides,well in advance of trial, of the facts that will bepresented.” Local attorneys reported, however, thatunfortunately the rule and order have not aided set-tlement, because parties take extreme positions intheir declarations, causing an increase in animosityand a diminished likelihood of settlement. The vari-ous amici curiae, including local practitioners, con-fidently claim that any increase in settlementsachieved by the rule and order occur because litig-ants generally cannot afford the substantial addedlitigation costs created by compliance with therules.

We are most disturbed by the possible effectthe rule and order have had in diminishing litigants'respect for and trust in ***504 the legal system.The Contra Costa survey confirmed that litigantsbelieved the rule and order deprived them of the es-sential opportunity to “tell their story” and “havetheir day in court,” and felt the rule and ordercaused the lawyers who drafted the declarations tobe the persons testifying, not themselves.“Members uniformly report that their clients arestunned to be told that they will not get to tell theirstory to the judge,” and express “shock, anxiety andoutrage” along with the belief that “they had beendenied their right to have their case heard by a judi-cial officer.” Overwhelmingly, practitioners criti-cized the rule and order for creating what their cli-

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ents understood to be a lesser standard of justice forfamily law litigants.

A recent statewide survey reflects a similarconcern with court procedures that do not permitfamily law litigants to tell their story, a circum-stance reported by litigants to diminish their confid-ence in the courts. (Judicial Council of Cal., Ad-min. Off. of Courts, Rep. on Trust and Confidencein the California Courts (2006) Phase II, pp. 31–36[self-represented litigants “express[ed] frustrationthat they did not have a chance to fully explain*1368 their side of the story to the judge”; “publictrust and confidence in the courts ... will continueto be negatively affected [by] procedures [that] donot permit [litigants] to tell their story at somelength and in their own words”].)

We are aware that superior courts face a heavyvolume of marital dissolution matters, and the caseload is made all the more difficult because a sub-stantial majority of cases are litigated by partieswho are not represented by counsel. (See JudicialCouncil of Cal., Rep on Statewide Action Plan forServing Self–Represented Litigants (2004) Execut-ive Summary, p. 2 [80% of the cases have at leastone unrepresented party by the time of disposi-tion].) In its 2006 report, the Judicial Council es-timated that “although family and juvenile casesrepresent 7.5 percent of total filings, they accountfor nearly one-third of the trial courts' judicialworkload....” (Judicial Council of Cal., Ann. Rep.(2006), p. 26, italics added.)

In light of the volume of cases faced by trialcourts, we understand their efforts to streamlinefamily law procedures. But family law litigantsshould not be subjected to second-class status ordeprived of access to justice. Litigants with othercivil claims are entitled to resolve their disputes inthe usual adversary trial proceeding governed bythe rules of evidence established by statute. It is atleast as important that courts employ fair proceed-ings when the stakes involve a judgment providingfor custody in the best interest of a child and gov-erning a parent's future involvement in his or her

child's life, dividing all of a family's assets, or de-termining levels of spousal and child support. Thesame judicial resources and safeguards should becommitted to a family law trial as are committed toother civil proceedings.

Trial courts certainly require resources ad-equate to enable them to perform their function. Ifsufficient resources are lacking in the superior courtor have not been allocated to the family courts,courts should not obscure the source of their diffi-culties by adopting procedures that exalt efficiencyover fairness, but instead should devote their effortsto allocating or securing the necessary resources.(See Cal. Stds. Jud. Admin, § 5.30(c).) As stated inthe advisory committee comment to the CaliforniaStandards for Judicial Administration: “It is onlythrough the constant exertion of pressure to main-tain **178 resources and the continuous educationof court-related personnel and administrators thatthe historic trend to give less priority ***505 andprovide fewer resources to the family court can bechanged.” (Advis.Com.com., Cal.Stds.Jud.Admin,foll. § 5.30(c).)

*1369 Courts must earn the public trust. (SeeCal. Stds. Jud. Admin., § 10.17, subd.(b)(5)(A) &(B).) We fear that respondent's rule and order hadthe opposite effect despite the court's best inten-tions.FN20

FN20. We recommend to the JudicialCouncil that it establish a task force, in-cluding representatives of the family lawbench and bar and the Judicial Council Ad-visory Committee on Family and JuvenileLaw, to study and propose measures to as-sist trial courts in achieving efficiency andfairness in marital dissolution proceedingsand to ensure access to justice for litigants,many of whom are self-represented. Such atask force might wish to consider proposalsfor adoption of new rules of court estab-lishing statewide rules of practice and pro-cedure for fair and expeditious proceedingsin family law, from the initiation of an ac-

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tion to postjudgment motions. Special caremight be taken to accommodate self-represented litigants. Proposed rules couldbe written in a manner easy for laypersonsto follow, be economical to comply with,and ensure that a litigant be afforded a sat-isfactory opportunity to present his or hercase to the court.

IVThe judgment rendered by the Court of Appeal

summarily denying the petition for writ of mandateor prohibition is reversed, and the matter is re-manded to that court with directions to issue a writin terms consistent with this opinion.

WE CONCUR: KENNARD, BAXTER, CHIN,MORENO, and CORRIGAN, JJ.Concurring Opinion by WERDEGAR, J.

I agree that the superior court's local rule andtrial scheduling order were inconsistent with stat-utory provisions of the Evidence Code and Code ofCivil Procedure, particularly the hearsay rule ofEvidence Code section 1200. (Maj. opn., ante, 63Cal.Rptr.3d at pp. 492–500, 163 P.3d at pp.167–174.) I also agree the trial court abused its dis-cretion in excluding petitioner's exhibits; becausethe rule and order were inconsistent with state law,enforcing these invalid measures to exclude virtu-ally all of a party's evidence was necessarily an ab-use of discretion. But given the existence of the loc-al rule and order at the time of trial, I would notconclude that the trial judge acted arbitrarily or un-duly “mechanically” in excluding petitioner's evid-ence. (See maj. opn., ante, 63 Cal.Rptr.3d at p. 502,163 P.3d at p. 175.) The trial court excused onebreach of the order (petitioner's late submission ofhis exhibits) and explained to petitioner the other(failure of petitioner's declaration to establish thefoundation for his exhibits). The court then offeredpetitioner an opportunity to cure the violation, anopportunity petitioner, for whatever reason, did notpursue. Despite petitioner's sudden offer to give uphis interest in the family home, moreover, the courtordered his interest preserved. In my view, the trial

court's rule and order, rather than the particular ac-tions of the court in this case, are to blame for theexclusion of petitioner's evidence.

*1370 Finally, while I join the majority in re-commending that the Judicial Council study waysfor trial courts to balance efficiency and fairness indissolution proceedings (maj. opn., ante, 63Cal.Rptr.3d at p. 505, fn. 20, 163 P.3d at p. 78, fn.20), I find it unnecessary to join the majority'spolicy critique of the Contra Costa County rule andorder (id. at pp. 502–505, 163 P.3d at pp. 175–178).The court properly holds the local rule and order in-valid because they conflict with state statutes, notbecause they are poor policy. The criticisms voicedby family law practitioners, although***506 im-portant, would be better considered by the JudicialCouncil or the Legislature than by this court. As wehave sound statutory grounds for holding the localrule and order invalid, I would leave the weighingof competing policy, at least in the first instance, toother institutions.

Cal.,2007.Elkins v. Superior Court41 Cal.4th 1337, 163 P.3d 160, 63 Cal.Rptr.3d 483,07 Cal. Daily Op. Serv. 9285, 2007 Daily JournalD.A.R. 11,939

END OF DOCUMENT

163 P.3d 160 Page 2241 Cal.4th 1337, 163 P.3d 160, 63 Cal.Rptr.3d 483, 07 Cal. Daily Op. Serv. 9285, 2007 Daily Journal D.A.R.11,939(Cite as: 41 Cal.4th 1337, 163 P.3d 160, 63 Cal.Rptr.3d 483)

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