35 Cal. App. 5th 476
Cal. Ct. App. 5th2019Background
- George and Deamon settled all issues at a June 1, 2017 mandatory settlement conference; the court directed counsel to prepare a judgment and indicated a 664.6 motion could be used to enforce the settlement.
- Counsel for Deamon prepared a proposed judgment; George refused to approve it and raised objections/changes.
- Deamon filed a request for entry of judgment under Code Civ. Proc. § 664.6 and a separate motion for sanctions under Fam. Code § 271, submitting declarations and documentary evidence.
- At the sanctions hearing George (in pro. per.) objected to Deamon not appearing in person and to hearsay, but did not serve a notice compelling his attendance or request a continuance to secure his live testimony.
- The family court took the matter under submission, relied on the written submissions and documents, and ordered George to pay $10,000 in sanctions.
- George appealed, arguing the court violated Fam. Code § 217 by deciding the motion without live testimony from Deamon and without a finding of good cause to exclude live testimony.
Issues
| Issue | Plaintiff's Argument (George) | Defendant's Argument (Deamon) | Held |
|---|---|---|---|
| Whether the court erred by deciding sanctions motion on declarations without receiving live testimony under Fam. Code § 217 | §217 gives right to live, relevant testimony and cross-examination; court should have required Deamon’s live testimony or excluded his declarations | George failed to follow procedural steps (e.g., notice to appear) to make Deamon available; declarations are admissible on motion under CCP §2009 when no live testimony is presented | Court did not err: George forfeited the right to live testimony by not compelling Deamon’s attendance or requesting continuance; deciding on declarations was proper |
| Whether a court must make an express §217 ‘‘good cause’’ finding before relying on declarations | Absence of express good-cause finding makes consideration of declarations improper | No prejudice: even without an express finding, Deamon was not made available and George gave no explanation how cross-examination would affect outcome | No reversible error: lack of express finding was not prejudicial where live testimony was not procured and would not likely have been outcome-determinative |
| Whether Swain requires exclusion of declarant’s declaration where opposing party objected to hearsay and lacked chance to cross-examine | Swain compels exclusion when opposing party cannot cross-examine the declarant | Swain is distinguishable because in Swain the opposing party was unable to take steps to secure testimony; here George could have but did not | Swain inapplicable: George was not prevented from obtaining Deamon’s presence and so had no right to automatic exclusion |
| Whether declarations must be formally offered into evidence at a family-law motion hearing | Declarations should not be considered unless offered and admitted at an evidentiary hearing | When parties present no live testimony, CCP §2009 allows motions to be decided on declarations; no separate in-court offer required absent evidentiary hearing | Declarations may be considered under CCP §2009 where no live testimony is presented and the parties do not request an evidentiary hearing |
Key Cases Cited
- In re Marriage of Binette, 24 Cal.App.5th 1119 (2018) (party may forfeit right to live testimony under Fam. Code §217 when procedural steps are not taken)
- In re Marriage of Swain, 21 Cal.App.5th 830 (2018) (where a party is unable to cross-examine because they had no opportunity to secure declarant’s attendance, the court may not rely on the declaration under §217)
- In re Marriage of Shimkus, 244 Cal.App.4th 1262 (2016) (if the court intends an evidentiary hearing, written declarations are not automatically in evidence and must be offered)
- In re Dolly D., 41 Cal.App.4th 440 (1995) (appearance by counsel generally suffices for civil proceedings; personal presence of party not always required)