31 Cal. App. 5th 1134
Cal. Ct. App. 5th2019Background
- Maya and Cody, unmarried parents, disputed custody of their daughter after the child was born with heroin in her system and later events (relapse, alleged drug use in child’s presence) prompted Cody to file a petition to establish parental relationship and obtain sole custody.
- Trial court entered temporary sole custody for Cody, imposed monitored visitation and drug/alcohol testing for Maya, and the parties later stipulated to modified orders and child support payments.
- Maya, represented by substitute counsel Abboud, failed to file a timely response; Cody requested entry of default and the court entered default in January 2017. Abboud claimed she mistakenly believed a response had been filed and sought to set aside the default under CCP § 473(b).
- While proceedings were pending, Maya engaged in threatening conduct at Cody’s home and Cody obtained a three-year domestic violence restraining order (DVRO) against Maya.
- Maya served subpoenas on two facilities that allegedly treated Cody; Cody moved to quash those subpoenas. Maya also sought $50,000 (later $100,000) in attorney fees under Fam. Code § 7605 to finance litigation.
- The trial court denied Maya’s motion to set aside the default, granted Cody’s motions to quash the subpoenas, denied Maya’s fee request, and entered judgment; Maya appealed.
Issues
| Issue | Maya's Argument | Cody's Argument | Held |
|---|---|---|---|
| Whether court erred by denying motion to set aside default under CCP § 473(b) | Abboud’s sworn declaration attesting mistake required mandatory relief; court had no discretion to deny | Court found Abboud not credible and that counsel’s repeated requests to file a response broke causal chain; discretionary denial permitted | Denial affirmed: court may deny relief if it finds default not caused by attorney’s mistake; credibility finding supported by substantial evidence |
| Whether subpoenas to VISIONS and Cedars-Sinai should have been quashed (tender/waiver of medical privileges) | Cody waived or tendered his medical condition by filing petition and by discussing treatment with Maya, so records are discoverable | Cody did not tender his medical condition; limited disclosures (existence/purpose) do not waive physician/psychotherapist privilege | Motions to quash affirmed: tender doctrine not triggered and mere disclosure of treatment existence does not waive privilege |
| Whether trial court erred in denying $100,000 attorney-fee financing under Fam. Code § 7605 | Section 7605 requires a needs-only, mathematical allocation; court improperly applied broader factors | Court permissibly considered ability to pay, necessity, reasonableness, parties’ conduct, and domestic violence when exercising discretion | Denial affirmed: court acted within broad discretion, considered relevant factors and misconduct, and fees not shown reasonable or necessary |
| Whether judgment must be reversed because entered after default | Default required reversal | Trial court considered merits for child’s best interest; any error harmless | Affirmed: court evaluated merits and no reversible error shown |
Key Cases Cited
- Cowan v. Krayzman, 196 Cal.App.4th 907 (court may assess credibility in CCP § 473(b) causation inquiry)
- Koshman v. Superior Court, 111 Cal.App.3d 294 (tender doctrine and limits on compelling patient medical records in custody disputes)
- Roberts v. Superior Court, 9 Cal.3d 330 (mere disclosure of existence or purpose of treatment does not waive physician-patient privilege)
- Kevin Q. v. Lauren W., 195 Cal.App.4th 633 (trial court may consider broader comparative factors when allocating fees under Fam. Code § 7605)
- In re Marriage of Czapar, 232 Cal.App.3d 1308 (fees awarded must be just and reasonable considering needs, ability to pay, and conduct)
- Falcone & Fyke, In re Marriage of, 203 Cal.App.4th 964 (trial court has broad discretion to apportion litigation costs equitably)
- In re Marriage of Winternitz, 235 Cal.App.4th 644 (appellate review of fee orders requires showing no judge could reasonably have made the order)
- Alan S. v. Superior Court, 172 Cal.App.4th 238 (income disparity alone does not automatically justify fee awards)
- In re Marriage of Cauley, 138 Cal.App.4th 1100 (domestic violence considerations may counsel against obligating protected party to finance restrained party)
- People ex rel. City of Santa Monica v. Gabriel, 186 Cal.App.4th 882 (harmless error standard when court considers merits despite procedural defects)