Post-Trial Motion and Writ Remedies Available In Domestic ...

Post-Trial Motion and Writ Remedies

Available In Domestic Violence Cases

Shuray Ghorishi, Esq., Staff Attorney

Copyright Family Violence Appellate Project 2016

What is FVAP?

Family Violence Appellate Project provides

free appellate representation to low-and

moderate-income survivors of domestic

violence (DV) throughout California in civil

cases, including matters related to restraining

orders, child custody, immigration and other DV

issues.


What is FVAP?

Based in Oakland, serve all of California

Screened over 600 requests for assistance since FVAP

started in 2012

73% success rate in prosecuting appeals (state

average: 21%), 100% success rate in defending

appeals

Overall success rate 84%

A State-Bar-recognized Support Center for legal aid

providers


Training Overview


What relief may be obtained from an unsuccessful family court order/judgment at the trial level?

Motion to Reconsider/Renewal Motions

Motion for New Trial

Motion to Vacate and Enter a Different Judgment

Motion to Set Aside

Motion to Correct a Clerical Error

What relief may be obtained from an unsuccessful family court order/judgment at the appellate level?

The focus of this training will be on when and how to file a common law writ with the California Court of Appeal.

Motion to Reconsider: What is it?


If your interim order has been denied, denied in part, granted, or granted conditionally, then you can make an application to the same judge that made the order, to reconsider the matter and modify, amend, or revoke the prior order. (Code Civ.

Proc., § 1008, subd. (a), (c), (e).)

It must be based upon new or different facts, circumstances, or law.

You cannot base the motion on a later enacted statute that does not have a retroactive application.

Motion to Reconsider:

What and When to File?


Procedures:

An application for reconsideration requires a noticed motion set for a hearing. It must be filed and served within 10 days after service of the written notice of entry of order. (CCP, § 1008(a).)

Directed to original judge/court

Supporting declaration must be included, which is signed under penalty of perjury

It must include the following: What motion was made before, when the prior motion was made and to which judge; what order or decisions were made and what new or different facts, circumstances, or laws are claimed to be shown

Beware: Statute allows the family court to award sanctions if requirements are not met

Renewal Motion: What Is It?


Similar to a motion for reconsideration, in

that it is based upon new or different facts,

circumstances or law. But this motion may be

directed at any judge (i.e., need not be the

same judge) and may be brought at any

time (i.e., 10 day limit does not apply).

The applicable code section is Code of Civil

Procedure section 1008, subdivision (b).

Are Reconsideration/Renewal

Motions Appealable?


No! But Code of Civil Procedure

section 1008(g) provides that “if the

order that was the subject of a

motion for reconsideration is

appealable, the denial of the motion

for reconsideration is reviewable as

part of an appeal from that order.”

Family Code Exceptions to

Reconsideration/Renewal Motions


Generally, a trial court only has jurisdiction to hear these motions if the motion complies with section 1008 (see CCP, § 1008 (e)) but the Family Code provides certain exceptions:

Requests for attorney’s fees under Family Code section 2030(c) that are filed after an earlier denial do not need to comply with Code of Civil Procedure section 1008. (See Marriage of Hobdy (2004) 123 Cal.4th 360, 371-373.) Same rule for attorney’s fees requests under Family Code sections 3121(d) and 7605(d).

False abuse charges: Family Code section 3022.5 provides that a motion for reconsideration of an existing child custody order must be granted if the motion is based on the fact that the other parent was convicted of a crime in connection with falsely accusing the moving parent of child abuse. This statute provides an automatic right of rehearing and it supersedes Code of Civil Procedure section 1008.

Motion for New Trial: What Is It?


Code of Civil Procedure section 657

provides that a decision may be

modified or vacated (in whole or part)

and a new or further trial granted (on all

or part of the issues), on motion of the

party aggrieved for certain causes,

materially affecting the substantial

rights of the moving party.

Motion for New Trial: Causes/Grounds

(CCP, § 657)


Irregularity in the proceedings of the court or adverse party, orany order of the court or abuse of discretion by which either party was prevented from having a fair trial;

Accident or surprise, which ordinary prudence could not have guarded against;

Newly discovered evidence, material to the moving party, which

could not, with reasonable diligence, have been discovered and produced at trial;

Insufficiency of the evidence to justify the trial court’s decisionor decision is against the law;

Error in the law occurring at the trial and objected to by party filing motion for new trial.

Motion for New Trial: When to File?


Code of Civil Procedure section 659(a):

After the decision is rendered and before the entry of

judgment.

No later than the earliest of:

15 days of the date of mailing of Notice of Entry of

Judgment (“NOEJ”) by the clerk; or

15 days after party’s service on the moving party of

written NOEJ; or

within 180 days after entry of judgment

Beware: Time limits are jurisdictional, so it cannot be extended by the court or

parties, and provisions under Code of Civil Procedure section 1013 extending time

for service via mail do not apply! (See CCP, § 659(b).)

Motion for New Trial: What to File?


Notice of Intention (i.e., Notice of Motion) that specifies the applicable grounds for new trial and whether the motion will be made on affidavits/declarations, court minutes or both.

Supporting documents

You must file and serve any brief and accompanying documents within 10 days of filing the notice of motion.

(CCP, § 659a.)

You must file a MPA; failure to do so may result in denial without a hearing on the merits. (CRC, rule 3.1600.)

You must file declarations if your motion is based on irregularity in the proceedings or abuse of discretion, accident or surprise, or newly discovered evidence. Court minutes will suffice if you base it on other grounds.

(CCP, § 658.)

Opposition & Oral Argument


Opposition papers must be served/filed 10 days after

service of supporting documents.

(CCP, § 659a; Cal. Rules of Court, rule 3.1600.)

Reply papers must be filed 5 days after service of

opposition papers. (CCP, § 659a.)

Oral argument is not required!

Family court may rule based on argument/evidence in supporting

documents and the record. If the judge desires oral argument, then

the parties are only entitled to five days notice.

(CCP, §§ 660, 661.)

Decision


A decision must be made within 60 days after the

earlier of the clerk’s mailing of the NOEJ or the

party’s service of written notice of judgment (i.e.,

file-stamped copy of judgment) on moving party.

If NOEJ was not given, then 60 days after filing

of the notice of motion for new trial.

A trial court lacks jurisdiction after 60-day period,

so if no ruling is made it will be considered a

denial by operation of law. (CCP, § 660.)

Motion to Vacate and Enter a

Different Judgment: What Is It?


Code of Civil Procedure section 663:

"A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes . . . :

1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected.

2. A judgment or decree not consistent with or not supported by the special verdict.”

Motion to Vacate: When to File?


Timing is the same as a motion for new trial!

Code of Civil Procedure section 663a:

After the decision is rendered and before the

entry of judgment.

No later than the earliest of:

15 days of the date of mailing of NOEJ by

the clerk; or

15 days after party’s service on the moving

party of written NOEJ; or

within 180 days after entry of judgment.

Motion to Vacate: What to File?


Notice of Intention (i.e., Notice of Motion)

Specify the grounds and explain how the

legal basis for the decision is not consistent

with the facts.

Same judge, unless judge is unable or absent

from county.

Same 60-day deadline to rule on motion to

vacate and enter different judgment.

Motion to Set Aside: What Is It?

CCP § 473(b)


Discretionary relief: move to set aside an order, judgment, dismissal, or other proceeding based on a party or the party’s attorney’s “mistake, inadvertence, surprise or excusable neglect.”

“Other proceeding” can be a stipulation. (See Marriage of Jacobs (1982) 128 Cal.App.3d 273, 282.)

Mandatory Relief: Section 473(b) also provides for mandatory relief from default, default judgment, or dismissal based on an attorney “affidavit of fault.”

Discretionary Relief: CCP § 473(b)


The party seeking relief must show:

(1) a proper ground for relief;

(2) the party has raised that ground in a procedurally

proper manner within any applicable time limits

Must be diligent, i.e., apply for relief within a reasonable

time not to exceed six months after the order, judgment,

dismissal, or proceeding was taken, and

Must not be any prejudice to the opposing party if relief is

granted. (Zamora v. Clayborn Contracting Group, Inc. (2002)

28 Cal.4th 251, 258.)

Discretionary Relief: Grounds


“Mistake” of fact or law

Mere ignorance of law not sufficient, but honest mistake of law may be found when issue is complex and debatable. (Compare In re marriage of Jacobs (1982) 128

Cal.App.3d 273 with Burnete v. La Casa Dana Apts (2007) Cal.App.4th 1262.)

“Surprise” is “some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” (Henderson v.

Pacific Gas & Elec. Co. (2010) 187 Cal.App.4th 215.)

(See, e.g., Las Vegas Land & Development Co., LLC v. Wilkie Way, LLC (2013) 219 Cal.App.4th 1086, 1092-1093.)

Discretionary Relief: Grounds


“Inadvertence or excusable neglect” has to be an act that would have been done by a reasonably prudent person under same circumstances, i.e., “reasonable person” test.

See, e.g., Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 258 (discretionary Section 473, subdivision (b) relief applied when attorney’s legal assistant typed “against” vs. “in favor of” in an offer to compromise. Attorney’s failure to review the document before sending it out was imprudent, but his imprudence does not render the mistake inexcusable.)

Family Code Limits on Discretionary

Set-Aside Motions


Family Code section 2123 limits a court’s discretion to set aside in proceedings for dissolution of marriage, nullity of marriage, or legal separation:

“…[A] judgment may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate.”

Mandatory Set-Aside Motions

CCP § 473(b)


The attorney seeking relief on behalf of his/her client must:

Seek to vacate a default that will result in entry of

default judgment, or default judgment or dismissal

against attorney’s client;

File the motion for mandatory relief within 6 months of

entry of judgment and the application must be in proper

form; and

Accompany the application with an attorney’s sworn

affidavit attesting to his or her mistake, inadvertence,

surprise or neglect.

Mandatory Set-Aside Motions

CCP § 473(b)


Although it is mandatory if the requirements above are met, family courts do not need to grant the relief if they find that the default or dismissal “was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

Applies to attorneys, not pro per litigants.

Beware of sanctions: Section 473, subdivision (b) provides that the court shall “direct the attorney at fault to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

Motion to Correct a Clerical Error


Under Code of Civil Procedure section 473(d):

The trial court may, upon motion of a party, or

its own motion, correct clerical errors in its

judgment or order entered to conform to the

judgment or order actually made;

The trial court may, on noticed motion of either

party, set aside any void judgment or order.

This motion is similar to a “nunc pro tunc.”

Clerical Errors v. Judicial Errors


Clerical Errors: Do not state the court’s

actual intent, because there was an error in

recording the order/judgment rendered

Judicial Errors: State the court’s actual

intent (i.e., it was a deliberate result of

judicial reasoning, even if the reasoning

was flawed or incorrect)

Wrong initials in name Court misconstrued evidence before it

Improper birth dates Misapplied the law applicable to facts

disclosed by evidence

Incorrect expiration date in a DVRO Court was misled by counsel

When to File and What to File for a

Motion to Correct Clerical Error?


What to file? A party should file a notice of motion

and support for a motion (i.e., MPA and declarations)

If the clerical error does not appear in the record, then

counsel may file additional evidence to demonstrate the

error was clerical.

When to file? Because courts have the inherent power

to make a correction, nunc pro tunc or otherwise, of

clerical errors, a party may file a motion to correct a

clerical error at any time, regardless of when the

mistake was made.

What Remedies Are Available at the

Appellate Level?


Unsuccessful trial court orders and judgments may be reviewed by the appellate court by (1) a petition for an extraordinary writ or (2) an appeal.

The focus for this training will be on extraordinary, common law writs. Specifically, we will discuss:

What is a writ, and how does it differ from an appeal?

When is a writ available as a remedy?

What type of writ to file?

What to file and how to respond to a writ (i.e., general writ procedure)?

What Is a Writ?


It is an avenue for the appellate court to review a

nonappealable trial court order, and under certain

exceptional circumstances, writ review will also lie

from an appealable order.

The relief you can obtain by filing a writ to the

court of appeal:

Directive from appellate court to do something or stop

doing something;

Affirmance or annulment of an order or judgment.

Writ vs. Appeal: General Differences


Appeals are heard as a matter of right. The appellate court must issue an opinion and decide whether to affirm or reverse.

Writs are completely discretionary and governed by equitable principles. Even if a trial court order is incorrect, the appellate court is not required to grant immediate writ review. Rather, it may leave review for an appeal of the final judgment.

A high percentage of writs are denied. (Brown, Winfield & Canzoneri Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1241 [as of 2/1/10 approximately 94% of writ petitions are summarily denied.].)

When Is a Writ Available?


A writ is only available where there is no other plain, speedy and adequate remedy in the ordinary course of the law. (CCP, §§ 1068, 1086, 1103.)

If an order, judgment, or decision is directly appealable, then you have an adequate remedy in the ordinary course of law unless you can show extraordinary circumstances.

See CCP § 904.1 to determine whether your order is directly appealable.

Case Examples: No Adequate Remedy


Temporary Child Custody Orders

Once the child has bonded with the custodial parent, the court will likely find the child’s best interest requires preserving that bond to maintain stability in the child’s life.

Therefore, “the only effective recourse is to obtain immediate review of any objectionable temporary custody order. This can be done by filing a writ, but not an appeal which will sit in abeyance while the case works its way to trial and decision—and while the bond between child and custodial parent strengthens and deepens.” (Lester v. Lennane(2000) 84 Cal.App.4th 536.)

Case Examples: No Adequate Remedy


Order granting or denying change of venue. (CCP, § 400.)

Orders denying motion to quash service of summons on the ground of lack of jurisdiction over him/her or to stay or dismiss the action on ground of inconvenient forum. (CCP § 418.10(e).)

Orders granting or denying judicial disqualification under section 170.1 (i.e. disqualification for cause) or by section 170.6 (i.e. preemptory challenge to a judge). (See CCP § 170.3(d).)

Case Example: Adequate Remedy, But

Extraordinary Circumstance Exists


Denial of pendente lite attorney fees for

imminent child custody hearing

Alan S., Jr. v. Superior Court (Mary T.)

(2009) 172 Cal.App.4th 238, 250 (typically,

pendente lite attorney fees awards are

appealable as a collateral matter, but when

the requested fee is necessary to hire counsel

for an upcoming child custody hearing, then

there is not an “adequate remedy” for review).

Case Example: Adequate Remedy & No

Exceptional Circumstance


An appeal is not made

“inadequate” by a party having

neglected to file a timely notice of

appeal. (Annette F. v. Sharon S.

(2005) 230 Cal.App.4th 1448.)

What Type of Writ to File?


Mandate: issues to correct an abuse of discretion or compel performance of a ministerial duty. (CCP, § 1085.)

Prohibition: issues to prevent a threatened judicial act in excess of jurisdiction. (CCP, § 1102.)

Certiorari: issues to correct a completed judicial act in excess of jurisdiction. (CCP, § 1068.)

Pragmatically, it may be hard to determine what type of writ to request, and generally speaking the petitioner’s characterization of the writ is not outcome-determinative, because an appellate court will rarely (if ever) deny the writ simply because it is mischaracterized.

Tip: If you are unsure, title your writ “Petition for Writ of Mandate, Prohibition, Certiorari, or Other Appropriate Relief.”

Writ of Mandate

CCP, § 1085


Requirements

Petitioner must show no other “adequate remedy at law” and that petitioner will suffer “irreparable injury” if the writ is not granted; and

Petitioner must show the lower court abused its discretion (State Farm Mut. Auto Ins. Co. v. Superior Court

(Corrick) (1956) 47 Cal.2nd 428, 432); or

Petitioner must show the lower court failed to perform a nondiscretionary duty to act. (Hendrix v. Superior

Court (2011) 191 Cal.App.4th 889, 893.)

What Is an Abuse of Discretion?


Generally, if there is a choice of action and the

court’s exercise of discretion exceeds all bounds of

reason.

Examples:

Family court misinterprets a statute or case law.

Family court issues an improper ruling under particular

facts.

Family court violates due process rights by dismissing

claim without proper notice or hearing.

What Is a Nondiscretionary Duty?


A ministerial action.

So, in addition to filing a writ of mandate to

correct an abuse of discretion, you can also file

a writ of mandate to compel performance of

a ministerial duty. (See People ex rel. Younger

v. County of El Dorado (1971) 5 Cal.3d 480.)

Examples: entry of a domestic violence

restraining order (DVRO) or custody order.

Writ of Prohibition

CCP, §§ 1102 – 1105


Requirements

Petitioner must show no other “adequate remedy at law” and that prohibition is necessary to prevent “irreparable injury”;

Petitioner must show there is a threatened judicial action, as opposed to a legislative or ministerial act; (See Duke v. Justice’s Court of City of Berkeley (1940) 42 Cal.App.2nd

178.)

Petitioner must show that act is without or in excess of jurisdiction. Jurisdiction is broadly defined—it is not restricted to “subject

matter” or “personal” jurisdiction. A writ of prohibition may also be issued to prevent the exercise of any unauthorized power. (Abelleria v. District Court of Appeal (1941) 17 Cal.2nd 280.)

Writ of Certiorari

CCP, §§ 1067 – 1077


Requirements

No other “adequate remedy at law”

and prohibition is necessary to prevent

“irreparable injury”;

There is a completed judicial action;

That act is without or in excess of

jurisdiction.

Writ of Supersedeas


Another form of common law writ.

Unlike the other forms discussed, it does not resolve the merits of the underlying case. It acts as a stay of enforcement on the trial court’s power to act on the order/judgment, until review is complete (i.e., maintains “status quo” until writ or appeal is resolved).

See Cal. Rules of Court, rules 8.112, 8.116, and Code of Civil Procedure section 923 for more information regarding this writ.

Parties Involved in Writ Proceedings?


Petitioner: party who requests the writ

Must have a beneficial interest

Respondent: the inferior tribunal; likely the superior court or judge in DV/custody proceedings

Real Party In Interest: party whose interest will be affected by the outcome of the writ; likely the other party who prevailed in a DV/custody proceeding

When to File a Common Law Writ?


Within a “reasonable time;” unreasonable delay may

bar review based on laches.

“Reasonable time” usually deemed to be 60 days after

entry of the challenged order.

Some courts have found 60 days unreasonable given

the particular facts of the case.

I.e., don’t wait until the eve of trial if order is issued months before.

Petitions filed later than 60-day deadline may be

heard in the court’s discretion.

Make sure to explain why opposing party will not be

prejudiced.

What to Include in a Writ Petition?


All the necessary components:

Petition (it’s a type of complaint);

Verification;

Memorandum of points and authorities;

Exhibits;

Certificate of word count; and

Any applicable filing fee. (See Cal. Rules of

Court, rules 8.77, 8.485, 8.486 & 8.488 for

details.)

What Happens After Writ Is Filed?


See “California Writs: A Flow Chart”

Preliminary Opposition to Petition


A preliminary opposition is not required, but may

be filed by the real party in interest or the

respondent. (Cal. Rules of Court, rules 8.487(a) &

(b).) It must be served/filed within 10 days after

the petition is filed. (Cal. Rules of Court, rule

8.487(a)(1).)

Petitioner may serve/file a reply within 10 days

after the preliminary opposition is filed. (Cal. Rules

of Court, rule 8.487(a)(3).)

Alternative Writ or Writ of Review


Appellate court decides whether to summarily deny, or issue an alternative writ in mandate/prohibition cases or writ of review in certiorari cases.

Mandate/Prohibition – peremptory writ in the first instance

Alternative writ or writ of review is not a decision on the merits. Rather, it is a determination that there is no other adequate remedy, and writ review is appropriate. It can come in the form of an order to show cause.

Return and Reply

Cal. Rules of Court, rule 8.487(b)


If an alternative writ or writ of review is issued, then respondent or real party in interest may serve/file “return.”

A “return” is like an opposition in the form of a demurrer or verified answer, or both. In certiorari cases, the return may also be record of trial court proceedings.

Timing - 30 days after the court issues the alternative writ or OSC, unless court orders otherwise.

Petitioner may file a reply within 15 days after the return is filed, unless the court orders otherwise.

Oral Argument and Opinion


Oral Argument

Once a full return is return is made, then each party is entitled to oral argument.

Written Opinion and Judgment

Mandate/Prohibition – formal opinion issuing or denying peremptory writ.

Certiorari – formal opinion affirming or annulling order/judgment.

Written opinion is required if alternative writ is issued and a “return” is filed. It is binding in the case and thus subject to res judicata (i.e., petitioner cannot file an appeal).

Peremptory Writ in the First Instance

CCP, § 1088


Appellate court may make a decision upon the initial showing, i.e., a writ petition filed with notice to the other parties and without a full briefing schedule or oral argument.

Very rare and requires an exceptional circumstance!

Petitioner’s entitlement to relief must be obvious; for example, when such entitlement is conceded, when there has been clear error under well-settled principles of law and undisputed facts, or where there is an unusual urgency requiring acceleration of the normal process. (Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1223.)

Peremptory Writ in the First Instance

CCP, § 1088


Notice to adverse party required!

Appellate court provides notice that such a writ may issue and invites informal opposition in orders routinely called “Palma notices.” (Palma v. United States Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)

Appellate court could also issue a “suggestive Palma notice,” which gives the trial court notice that it intends to issue a peremptory writ in the first instance, and “suggests” that the trial court erred and states that if the trial court changes its order, the writ petition will be denied as moot.

HYPO #1


Father and Mother have been in a relationship for 10 years and have a son. Two years ago, Mother ended the relationship due to Father’s physical abuse. The parties entered into stipulation and order for joint custody. Mother attended son’s hockey game with her new boyfriend. Father pushed mother to the ground and kicked her in a jealous rage. As a result, Mother filed a request for restraining order and sole custody of son. The family court issued DVRO, specifically finding that Father physically abused Mother. The court then scheduled a long cause custody hearing. Father did not appear at the custody hearing. Mother explained she wanted custody because she feared for her and her son’s safety. The court issued a judgment for joint custody, stating only that the previous stipulation and order should remain in effect.

HYPO #2


Six years ago, Mother and Father separated due to

Father’s abuse towards Mother. Father, who is in the

military, got remarried and moved to Alabama. Mother

has lived with parties’ two children in California for the

majority of children’s lives. In 2016, Father moved to

modify the custody order. The trial court changed

physical custody from Mother to Father, opining that it

was “father’s turn to parent the children.” Over mother’s

objection to wait until the children’s school year was

over, the court ordered the children to be moved within

the next four days from California to Alabama.

HYPO #2, Cont.


Facts of the hypo are very similar to Jane J. v.

Superior Court (2015) 237 Cal.App.4th 894, 909.

Appellate court issued a peremptory writ in the

first instance on review of a child custody move-

away order granted. The appellate court stated:

“[T]he need for immediate action remains

because of the impact of the … change of

custody order on the children’s interests in

stability and community in retaining their existing

custodial relationship with Mother.”

Questions?


Thank You!

Erin Smith, Esq., Executive Director

[email protected]

Nancy K.D. Lemon, Esq., Legal Director

[email protected]

Jennafer Wagner, Esq., Director of Programs

[email protected]

Shuray Ghorishi, Esq., Staff Attorney

[email protected]

1814 Franklin St. Suite 805

Oakland, CA 94612

(510) 858-7358 (tel)

(866) 920-3889 (fax)

www.fvaplaw.org


This project was supported by funding awarded by the United States Department of Justice, Victims of Crime Act, 2015-VA- GX-0058, through the California

Governor’s Office of Emergency Services; and by Grant Number 2016-WL- AX-0055, awarded by the Office on Violence Against Women, U.S. Department of

Justice. The opinions, findings, conclusions and recommendations expressed in this publication are those of the authors and do not necessarily reflect the views of the

Department of Justice, Office on Violence Against Women.

mailto:[email protected]




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