JEFFREY ELKINS, Petitioner, v. THE SUPERIOR COURT OF CONTRA COSTA COUNTY, Respondent; MARILYN ELKINS, Real Party in Interest.
No. S139073
Supreme Court of California
Aug. 6, 2007
41 Cal. 4th 1337
Garrett C. Dailey for Petitioner.
Law Offices of Marjorie G. Fuller, Marjorie G. Fuller and Shara Beral Witkin for Southern California Chapter of the American Academy of Matrimonial Lawyers, Northern California Chapter of the American Academy of Matrimonial Lawyers, Los Angeles County Bar Association, Los Angeles County Bar Association Family Law Section, Orange County Bar Association, Honorable Donald B. King, Honorable Sheila Prell Sonenshine, Honorable J.E.T. Rutter and Honorable Richard Denner as Amici Curiae on behalf of Petitioner.
Horvitz & Levy, David S. Ettinger; Eisenberg and Hancock and Jon B. Eisenberg for Respondent.
Fancher & Wickland, Paige Leslie Wickland; Harkins & Sargent and Daniel S. Harkins for Real Party in Interest.
Fox and Bank, Ronald S. Granberg, Dawn Gray, Linda Seinturier, Kathryn Fox, Brigeda D. Bank; and Stephen Temko for Association of Certified Family Law Specialists as Amicus Curiae upon the request of the Supreme Court.
Lee C. Pearce for the Family Law Section of the Contra Costa County Bar Association as Amicus Curiae upon the request of the Supreme Court.
OPINION
GEORGE, C. J.—Petitioner Jeffrey Elkins represented himself during a trial conducted in marital dissolution proceedings instituted by his wife, Marilyn Elkins (real party in interest), in the Contra Costa Superior Court. A local superior court rule and a trial scheduling order in the family law court provided that in dissolution trials, parties must present their cases by means of written declarations. The testimony of witnesses under direct examination was not allowed except in “unusual circumstances,” although upon request parties were permitted to cross-examine declarants. In addition, parties were required to establish in their pretrial declarations the admissibility of all exhibits they sought to introduce at trial.
Petitioner‘s pretrial declaration apparently failed to establish the evidentiary foundation for all but two of his exhibits. Accordingly, the court excluded the 34 remaining exhibits. Without the exhibits, and without the ability through oral testimony to present his case or establish a foundation for
Petitioner challenges the local court rule and trial scheduling order on the grounds that they are inconsistent with the guarantee of due process of law, and that they conflict with various provisions of the
We need not reach petitioner‘s constitutional claim because, as applied to contested marital dissolution trials, the rule and order are inconsistent with various statutory provisions.1 As we explain below, we reach this conclusion because, pursuant to state law, marital dissolution trials proceed under the same general rules of procedure that govern other civil trials. Written testimony in the form of a declaration constitutes hearsay and is subject to statutory provisions governing the introduction of such evidence. Our interpretation of the hearsay rule is consistent with various statutes affording litigants a “day in court,” including the opportunity to present all relevant, competent evidence on material issues, ordinarily through the oral testimony of witnesses testifying in the presence of the trier of fact.
Although we are sympathetic to the need of trial courts to process the heavy caseload of dissolution matters in a timely manner, a fair and full adjudication on the merits is at least as important in family law trials as in other civil matters, in light of the importance of the issues presented such as the custody and well-being of children and the disposition of a family‘s entire net worth. Although respondent court evidently sought to improve the administration of justice by adopting and enforcing its rule and order, in doing so it improperly deviated from state law.
Subsequent to the trial (and our grant of review) in the present case, respondent incorporated much of its trial scheduling order into regularly adopted and published local rules of court. As of January 1, 2007, respondent‘s local rules were amended to provide that although declarations still are required from each witness in a dissolution trial, litigants have the option of calling witnesses for direct examination in addition to filing declarations.2
This amendment does not render petitioner‘s case moot, because the prior rule and order were enforced against petitioner. In addition, the amended rules still require the admission into evidence of hearsay declarations, a practice inconsistent with the
In addressing the issues raised by petitioner, we also exercise our inherent authority to ensure the orderly administration of justice and to settle important issues of statewide significance. (See People v. Kelly (2006) 40 Cal.4th 106, 110 [51 Cal.Rptr.3d 98, 146 P.3d 547]; In re Roberts (2005) 36 Cal.4th 575, 593 [31 Cal.Rptr.3d 458, 115 P.3d 1121]; Konig v. Fair Employment & Housing Com. (2002) 28 Cal.4th 743, 745–746, fn. 3 [123 Cal.Rptr.2d 1, 50 P.3d 718]; Burch v. George (1994) 7 Cal.4th 246, 253, fn. 4 [27 Cal.Rptr.2d 165, 866 P.2d 92].) In addition to providing guidance to the trial courts, our discussion highlights the unusual burdens and restrictions that have been imposed upon family law litigants at the local level in response to increasing caseloads and limited judicial resources. We observe that this problem may merit consideration as a statewide policy matter, and suggest to the Judicial Council that it establish a task force for that purpose.
I
Marilyn and Jeffrey Elkins were married on April 20, 1980. They had one child, who was born in 1991. After Marilyn subsequently instituted marital dissolution proceedings, the issue of date of separation was bifurcated and tried first. Property issues were to be tried on September 19, 2005.
The matter proceeded subject to a local rule of court providing that at trials in dissolution matters, “[d]irect examination on factual matters shall not be permitted except in unusual circumstances or for proper rebuttal. The Court may decide contested issues on the basis of the pleadings submitted by the parties without live testimony.” (Super. Ct. Contra Costa County, Local Rules, former rule 12.5(b)(3), eff. July 1, 2005.) In addition, the rule provided that “[s]ubject to legal objection, amendment, and cross-examination, all declarations shall be considered received in evidence at the hearing.” (Ibid.) Under the rule, a party‘s failure to file responsive pleadings, including declarations, in the time prescribed by the rules authorized the court to “permit the matter to proceed as a default,” or order a continuance and impose a monetary sanction on the “untimely party.” (Id., former rule 12.5(b)(4).)
Under the TSO, the parties were ordered to file initial declarations executed by themselves and by their witnesses 10 court days prior to trial, along with trial briefs. The order provided that the declarations were to “explain” the appended complete set of trial exhibits, and that “[a]ny required evidentiary foundation for admission of the proposed exhibits shall be completely set forth in the declaration(s).”
Sanctions for failure to comply with the TSO were severe. “Failure to provide initial declarations may result in there being no direct testimony on that issue and issue sanctions may result. Failure to file a trial brief indicates to the court that no cases are being relied on by that side. Failure to provide a declaration because a witness refused to sign it shall not excuse the filing of [any] unsigned declarations.” (Italics added.)
The TSO directed the parties to file responsive declarations and exhibits five court days prior to trial, along with any objections to exhibits, as well as responsive briefs and any demands for the production of declarants for the purpose of cross-examination. The TSO concluded with the following warning: “Failure to comply with these requirements will constitute good cause to exclude evidence or testimony at trial and/or to make adverse inferences or findings of fact against the non-complying party.”
Marilyn, who was represented by counsel, filed her declaration, exhibits, and trial brief on September 2, 2005, and her responsive declaration on September 8, 2005. Jeffrey, who was not represented by counsel, filed his trial brief and declaration on September 2, 2005. He failed to attach his exhibits, however, and his binder of 36 exhibits was not delivered to the court and to opposing counsel until one court day prior to the date set for trial.
According to Marilyn‘s declaration, the issues to be determined at trial included (1) valuation and disposition of the family home; (2) Jeffrey‘s right to reimbursement for postseparation improvements to the home; (3) the characterization and division of a multimillion-dollar litigation settlement awarded to Jeffrey‘s business; (4) the amount of Jeffrey‘s income from specified sources; (5) the characterization and division of assets withdrawn by Jeffrey from community accounts; (6) division of a retirement account held in Marilyn‘s name; (7) the status of certain property declared to be the separate
The matter came on for trial. Counsel for Marilyn objected to all but two of Jeffrey‘s exhibits because, contrary to the TSO, Jeffrey‘s declaration failed to refer to the exhibits or offer a basis for their admission into evidence. The court had not received its copy of Jeffrey‘s declaration or exhibits when trial began, forcing it to review Jeffrey‘s copy on the bench. Marilyn‘s counsel announced he would not cross-examine Jeffrey if the court sustained counsel‘s objection to Jeffrey‘s exhibits, and asserted that Jeffrey therefore was “not entitled to offer any further evidence.”
When Jeffrey explained that the procedure he had followed was the same he had engaged in at the trial of the bifurcated issue of the date of separation, the court admonished Jeffrey that he had misunderstood the objection raised by Marilyn‘s counsel. The court explained: “In order to get a document admitted into evidence under the trial scheduling order . . . it says that the evidentiary basis and foundation for each exhibit must be set forth in the declaration so the other side can object to see, you know, if exhibits have an evidentiary basis or not. And [Marilyn‘s counsel is] saying that those exhibits don‘t have any foundation in your declaration. [¶] So if you can point me to the foundations in your declarations, then we—we‘ll dispose of that argument quickly[.] If not those—those exhibits that don‘t have an evidentiary foundation will be stricken.” (Italics added.)
The court provided a “typical example of what I‘m talking about with foundation,” noting that Jeffrey‘s proposed exhibit No. 5 was not referred to in Jeffrey‘s declaration, “[s]o there‘s no way of knowing what this document is without any testimony—direct testimony saying what this is or what it purports to [be].” (Italics added.) Jeffrey attempted to explain that his exhibit No. 5 “refers to an accounting given to my wife—given by my wife to me, and this document is in relation to that.”
The court responded: “I understand that. I‘ve already reviewed your declaration. Tentatively, I am going to rule in favor of [Marilyn]. I‘m going to allow you at one of the breaks that we have so as not to disrupt the flow right now to rethink your argument and give me the specific evidentiary foundations for these documents, but I don‘t see it in your declaration. Particularly, the one we were specifically talking about, Exhibit 5, I don‘t see any specific reference to it in your declaration. There‘s a general reference to a general category.” (Italics added.) Jeffrey responded: “Your Honor, there are no specific references in any document.” The court, after asking Jeffrey not to interrupt, continued: “There‘s a general reference, and under that general
Marilyn‘s declaration and exhibits were admitted into evidence, and she rested her case. Counsel for Marilyn objected to any consideration of the proposed order filed by Jeffrey because the filing of that document was untimely under the TSO.
The court stated its understanding, based upon Jeffrey‘s declaration, that Jeffrey did not wish to cross-examine Marilyn and that he consented to a dissolution of the marriage. Jeffrey stated he was resting his case. The court confirmed that Jeffrey had withdrawn his request to cross-examine Marilyn, and Jeffrey added that he also wished to withdraw his request to cross-examine expert witness Eggers. The court stated: “Well, before you rest, I‘m assuming you would like to admit into evidence your declaration,” but Jeffrey stated he did not wish to do so. Accordingly, Jeffrey‘s declaration was not admitted into evidence. Without providing the anticipated “morning break,” the court invited closing argument. Although observing that the trial was proceeding “quasi by default, so to speak,” the court stated that both parties still should address the subjects of “the furniture lists” and the contents of the safe deposit box. Counsel for Marilyn responded that those issues had been settled by stipulation prior to trial.
Jeffrey confirmed the stipulations and further offered to relinquish his interest in the family home and in his automobile. The court responded that Jeffrey‘s offer was too drastic and that the court would permit him to reconsider, stating that the court would “render a decision along the lines of [Marilyn‘s counsel‘s] proposed order after trial, despite your request here, because that was not what was before me to be tried today. And so the tenor of what you‘ve just said is in contrast to the declaration that you submitted to me that I prepped on, your trial brief . . . .”
Jeffrey responded that he was not referring to the proposed order he had submitted prior to trial. He declared: “My concern is that I came into the trial with the intent of presenting my position, and I‘m being cut out of that completely with only reliance on two exhibits which are—no way can defend my position. So I might as well give up my position and leave it to the best well-being of my family.” (Italics added.)
The court took the matter under submission. Marital status was terminated, and additional issues were reserved for future trial. The court asked the parties to decide by the end of the week whether to submit a settlement agreement (presumably reflecting Jeffrey‘s last-minute waiver of any interest in the community property) or instead to ask the court to rule upon the proposed orders that were submitted to the court prior to trial. Apparently the parties selected the latter option; on October 3, 2005, the court filed a final disposition of the property issues still reflecting Jeffrey‘s half-interest in the family home. The order noted the parties’ stipulation concerning child custody and visitation and the court‘s reservation of jurisdiction over the matter of child support. By further stipulation, the parties waived spousal support, and the court‘s jurisdiction over that issue was terminated. The community interest in Marilyn‘s retirement account was divided, and the court resolved the additional property issues identified in Marilyn‘s declaration in a manner substantially reflecting the order proposed by Marilyn.
Jeffrey filed a petition for writ of mandate or prohibition in the Court of Appeal. He asserted that there was no statutory authority for the local rule and order preventing the parties from presenting the direct examination of witnesses and requiring the evidentiary foundation for proposed exhibits to be established in a declaration filed well in advance of trial. He further argued that the local rule and order established a system of “trial by declaration” that violated due process principles and placed an “unreasonable burden” on litigants. Jeffrey‘s petition also contended that the sanctions established by the rule and order were inconsistent with the policy favoring trial on the merits, and that their enforcement by the trial court constituted an abuse of discretion requiring reversal of the judgment that resolved the parties’ community property dispute.
The Court of Appeal summarily denied the petition. We subsequently granted petitioner‘s petition for review and ordered the Contra Costa County Superior Court to show cause why the challenged local rule and trial scheduling order should not be deemed invalid for the reasons stated in the
II
A
As respondent court asserts, trial courts possess inherent rulemaking authority as well as rulemaking authority granted by statute. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 [67 Cal.Rptr.2d 16, 941 P.2d 1203] (Rutherford);
The scope of a court‘s inherent rulemaking authority has been discussed in various decisions (see, e.g., Rutherford, supra, 16 Cal.4th at pp. 967–968), and the outer limits of such authority are clear.4 A trial court is without authority to adopt local rules or procedures that conflict with statutes or with rules of court adopted by the Judicial Council, or that are inconsistent with the California Constitution or case law. (Rutherford, supra, at pp. 967–968; see also Hall v. Superior Court (2005) 133 Cal.App.4th 908, 916–918 [35 Cal.Rptr.3d 206].) As provided in
Reviewing courts have not hesitated to strike down local court rules or policies on the ground they are inconsistent with statute, with California Rules of Court promulgated by the Judicial Council, or with case law or constitutional law. Appellate decisions have invalidated local rules or restricted their application in many areas of affected litigation, including dissolution actions,5 litigation under the Trial Court Delay Reduction Act (
In Lammers v. Superior Court (2000) 83 Cal.App.4th 1309 [100 Cal.Rptr.2d 455], for example, a local court rule governing family law proceedings required the parties to file a timely request that the court review the case file prior to a hearing on a contested matter. In order to avoid obvious constitutional issues, the reviewing court refused to endorse the trial court‘s view that the local rule relieved the court of the obligation to read the case file at all when the request to do so was untimely. The Court of Appeal explained that “a measure implemented for the sake of efficiency cannot jeopardize the constitutional integrity of the judicial process [citation]. In other words, court congestion and ‘the press of business’ will not justify depriving parties of fundamental rights and a full and fair opportunity to present all competent and material evidence relevant to the matter to be adjudicated.” (Id. at p. 1319.)9
This court made similar observations in Garcia v. McCutchen (1997) 16 Cal.4th 469 [66 Cal.Rptr.2d 319, 940 P.2d 906] (Garcia), involving fast track litigation. (
We rejected the trial court‘s argument that such power to dismiss was essential to serve the goal of reducing delay in litigation. We pointed out that the Trial Court Delay Reduction Act did not elevate delay reduction over the right of a litigant to present his or her case to the court, nor was delay
B
Although some informality and flexibility have been accepted in marital dissolution proceedings, such proceedings are governed by the same statutory rules of evidence and procedure that apply in other civil actions (with exceptions inapplicable to the present case). The
The rule and order that were applied in the present case called for the admission of declarations in lieu of direct testimony at trial. It is well established, however, that declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions, unless the parties stipulate to the admission of the declarations or fail to enter a hearsay objection. (
Another statutory exception to the hearsay rule permits courts to rely upon affidavits in certain motion matters. (
The same point was emphasized in Reifler, supra, 39 Cal.App.3d 479. In that case the Court of Appeal considered a challenge to a Los Angeles Superior Court policy of adjudicating long-cause hearings on postjudgment motions in marital dissolution matters solely on the basis of affidavits. The reviewing court acknowledged that affidavits ordinarily are excluded as hearsay, but concluded
A recent decision by this court demonstrates the limited application of
Moreover, as we explained in Johnson, “allowing a prosecutor to oppose a suppression motion with written affidavits in lieu of live testimony would be inconsistent with the trial court‘s vital function of assessing the credibility of witnesses.” (Johnson, supra, 38 Cal.4th. at p. 729, fn. 8; see id. at p. 726.) A suppression motion “presents issues as to which the credibility of witnesses often is of critical significance” (id. at p. 731), and the witness‘s personal presence and oral testimony is significant because it ” ‘enable[s] the trier of fact to consider the demeanor of the witness in weighing his testimony and judging his credibility’ ” (id. at p. 733).
We also observed in Johnson that, unlike a pretrial suppression motion, the motions referred to in
We conclude that respondent‘s rule and order are inconsistent with the hearsay rule to the extent they render written declarations admissible as a basis for decision in a contested marital dissolution trial. As we shall discuss, our conclusion is consistent with fundamental principles established in other statutes. All relevant evidence is admissible, including evidence bearing on the issue of witness credibility (
As noted, evidence bearing on the issue of credibility of witnesses comes within the basic rule that all relevant evidence is admissible, except as specifically provided by statute. (
As stated by an appellate court in 1943 with reference to a trial court‘s refusal to permit a witness to testify in a marital dissolution matter: “We are fully cognizant of the press of business presented to the judge who presides over the Domestic Relations Department of the Superior Court . . . , and highly commend his efforts to expedite the handling of matters which come before him. However, such efforts should never be directed in such manner as to prevent a full and fair opportunity to the parties to present all competent, relevant, and material evidence bearing upon any issue properly presented for determination. . . . Matters of domestic relations are of the utmost importance to the parties involved and also to the people of the State of California. . . . To this end a trial judge should not determine any issue that is presented for his consideration until he has heard all competent, material, and relevant
Oral testimony of witnesses given in the presence of the trier of fact is valued for its probative worth on the issue of credibility, because such testimony affords the trier of fact an opportunity to observe the demeanor of witnesses. (Ohio v. Roberts (1980) 448 U.S. 56, 64 [65 L.Ed.2d 597, 100 S.Ct. 2531].) A witness‘s demeanor is “part of the evidence” 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 witness] may be convinced of his honesty, his integrity, [and] his reliability . . . because a great deal of that highly delicate process we call evaluating the credibility of a witness is based on . . . ‘intuition’ “].)
The testimony of witnesses given on direct examination is afforded significant weight at trial in ascertaining their credibility; cross-examination does not provide the sole evidence relevant to the weight to be accorded their testimony. “In a contested hearing, the precise words and demeanor of a witness during direct as well as cross-examination bears on the credibility and weight the trier of fact accords the witness‘s testimony. Moreover, observation of a witness on direct is important to the planning and execution of effective cross-examination.” (Denny H. v. Superior Court (2005) 131 Cal.App.4th 1501, 1513–1514 [33 Cal.Rptr.3d 89].)
Ordinarily, written testimony is substantially less valuable for the purpose of evaluating credibility. (Goldberg v. Kelly (1970) 397 U.S. 254, 269 [25 L.Ed.2d 287, 90 S.Ct. 1011] [“Particularly where credibility and veracity are at issue . . . written submissions are a wholly unsatisfactory basis for decision“]; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 414 [58 Cal.Rptr.2d 875, 926 P.2d 1061] [” ‘it‘s pretty difficult to weigh credibility without seeing the witnesses’ “].) “A prepared, concise statement read by counsel may speed up the hearing, but it is no substitute for the real thing. Lost is the opportunity for the trier of fact and counsel to assess the witness‘s strengths and weaknesses, recollection, and attempts at evasion or spinning the facts . . . . [W]ith a scripted statement, prepared and agreed to by one party in advance, comes the passage of time and with that lapse may come the party‘s unyielding acceptance of the script. Lost to cross-examination is the opponent‘s ability to immediately test and dissect adverse testimony.” (Denny H. v. Superior Court, supra, 131 Cal.App.4th at p. 1514, italics omitted.)
The historical pattern of a trial as an oral examination of witnesses in the presence of the trier of fact rather than an exchange of written declarations is
Although
The only remaining means recognized in
In sum, consistent with the traditional concept of a trial as reflected in provisions of the Evidence Code and the Code of Civil Procedure, we
C
Respondent contends courts have authority to adopt nonstatutory exceptions to the hearsay rule and that prior decisions approve of such exceptions in marital dissolution matters. Cases cited in support of the latter proposition, however (see, e.g., Reifler, supra, 39 Cal.App.3d 479), conclude that statutory authorization, namely
Respondent relies upon this court‘s decision 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 have discretion not to hold a full evidentiary hearing in contested family law matters. Respondent‘s reliance is misplaced, as we shall explain.
When parties have been unable (privately or through mediation) to agree on custody, “the court shall set the matter for hearing on the unresolved issues.” (
Respondent also refers to
This provision never has been interpreted as affording a basis for disregarding the statutory rules of evidence or working a fundamental alteration in the nature of a trial. Respondent‘s argument would prove too much; under its analysis,
Respondent contends
Respondent claims that if we conclude that declarations should be excluded as hearsay in contested marital dissolution trials, our decision will overturn settled practice and cause serious disruption. It does not appear, however, that respondent‘s description of settled practice is accurate. As is evident from our consultation of treatises and practice manuals, it is well settled that the ordinary rules of evidence apply in marital dissolution trials.
“The same rules of evidence apply at trial in a marital action as in civil actions generally. Thus, facts must be established by admissible evidence, and objections must be properly stated and based on the Evidence Code or other applicable statutes or court rules. . . . [¶] A litigant has a right to present evidence at trial and, although the court can exclude otherwise admissible evidence because it is unduly time-consuming, prejudicial, confusing, or misleading, outright denial of the right to present evidence is error. [Citations.] The court‘s discretion to exclude oral testimony entirely . . . does not apply to trials.” (Samuels & Mandabach, Practice Under the Cal. Family Code, supra, § 16.5, pp. 745-746.) The same source recognizes that some courts nonetheless attempt to place special restrictions upon the introduction of evidence, noting that “[t]raditionally, trial judges have often regarded trials in marital actions as somehow less important than other civil litigation. This attitude has been both recognized and strongly criticized by appellate courts. [Citation.]” (Id., § 16.10, p. 748; see also 11 Witkin, Summary of Cal. Law, supra, Husband and Wife, § 99, pp. 152, 154 [provisions governing civil trials apply unless otherwise specified by statute or Judicial Council rule, including the rules of evidence].) Another practice manual explains: “At a contested trial, affidavits are not competent evidence; though made under oath, they are hearsay . . . .” (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 13:106, p. 13-30; see also id., ¶ 13:81, p. 13-22.1.)
Commenting upon Justice Traynor‘s concurring opinion in Fewel, supra, 23 Cal.2d 431, and this court‘s decision in Lacrabere, supra, 141 Cal. 554, respondent asserts we have limited the admissibility of declarations only when there is no opportunity for cross-examination. Although our decisions indeed have noted the absence of an opportunity for cross-examination, more
Marilyn contends that the distinction between hearings on motions (at which Reifler, supra, 39 Cal.App.3d 479, permits the introduction of hearsay evidence) and trials is illusory in the context of marital dissolution proceedings and should not be the basis for our decision in the present case. As she asserts, in many instances the family court retains jurisdiction over marital dissolution matters for an extended period, responding to repeated motions for interim rulings and for modification of orders. Yet we have drawn a distinction between hearings at which a judgment is entered, and hearings on postjudgment motions. A postjudgment motion for modification of a final child custody order, for example, requires the moving party to demonstrate a significant change of circumstances warranting departure from the judgment. (Montenegro v. Diaz, supra, 26 Cal.4th at p. 256.) A presumption exists that the judgment is correct and should not be disturbed—a presumption that would not be well founded were the judgment to be based upon hearsay (unless admitted into evidence upon stipulation of the parties). Marilyn fails to support her claim that, for the purpose of the hearsay rule, there is and should be no procedural or substantive distinction between motions and trials in the context of marital dissolution proceedings.
D
Marilyn claims petitioner forfeited any claim challenging respondent‘s rule barring oral examination of witnesses on direct examination, because he did not object on that basis. We do not agree that petitioner forfeited his claim. It should have been evident to the trial court that petitioner‘s inability to proceed stemmed both from the local rule precluding direct testimony and the order governing the admissibility of evidence.
In any event, even if petitioner failed to preserve his claim with respect to the prohibition on oral examination of witnesses, he certainly objected to the exclusion of nearly all of his evidence for noncompliance with the court‘s trial scheduling order. The trial court abused its discretion in sanctioning petitioner by excluding the bulk of his evidence simply because he failed,
Although authorized to impose sanctions for violation of local rules (
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 file opposition to a motion for summary judgment within the time prescribed by local rules. We concluded that the trial court abused its discretion in refusing to consider the tardy opposition. (Id. at p. 30.) ” ‘Judges . . . generally prefer to avoid acting as automatons and routinely reject requests by counsel to function solely in a ministerial capacity. Rigid rule following is not always consistent with a court‘s function to see that justice is done. Cognizant of the strong policy favoring the disposition of cases on their merits [citations], judges usually consider whether to exercise their discretion in applying local court rules and frequently consider documents which have been untimely filed.’ ” (Id. at pp. 28-29, italics added.)16
Even under the fast track statute, a demanding efficiency scheme that does not apply in family law matters (
In the present case, the trial court applied the sanction provision of its local rules in a mechanical fashion without considering alternative measures or a lesser sanction, resulting in the exclusion of all but two of petitioner‘s 36 exhibits. Had the court permitted petitioner to testify, he could have provided some foundation for his exhibits. In applying the local rule and order mechanically to exclude nearly all of petitioner‘s evidence—and proceeding, in the words of the trial court, “quasi by default“—the trial court improperly impaired petitioner‘s ability to present his case, thereby prejudicing him and requiring reversal of the judgment.18
III
Respondent claims “[f]irst and foremost” that efficiency and the “expeditious resolution of family law cases” support its rule and order. It also seeks to justify these requirements on the theory that they serve to reduce rancor and “adversarial confrontation between estranged spouses,” and to assist the many self-represented litigants in the family law courts by “giving them direction as to how to prepare for trial, how to frame issues properly, and how to provide evidentiary support for their positions and . . . avoid being ‘blindsided’ by the adverse party.”
Moreover, the amicus curiae briefs we have received strongly dispute respondent‘s assertion that its rule and order promote efficiency, reduce rancor or costs, promote settlement, or aid unrepresented litigants. In their brief, the Northern and Southern California Chapters of the American Academy of Matrimonial Lawyers (Academy) argue that the local rule and order only increase the burden on the trial courts and further strain limited judicial resources, because it is more time consuming for the court to examine lengthy declarations than it is to listen to testimony, leaving courts “with two options: (1) spend more time than they have available 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 choice favored by litigants, lawyers, or judicial officers.”
The same brief characterizes as an “absurdity” respondent‘s claim that the rule and order help self-represented litigants by describing in detail how they must prepare for trial. On the contrary, the brief claims, “[t]he burdens created by the local court rule and [order] are so onerous that they overwhelm most attorneys, let alone self-represented litigants.” According to the Academy‘s brief, the rule and order restrict access to justice by increasing the cost of litigation. The brief points to the added costs of preparing exhaustive declarations of all potential witnesses, including an evidentiary foundation for all proposed exhibits, and taking the deposition of nonparty witnesses in the event they refuse to prepare a declaration.
The Family Law Section of the Contra Costa County Bar Association commissioned a professional survey of family law practitioners in the county, and the great majority of those surveyed were decidedly critical of the rule and order, including the successor to the order at issue in the present case, believing the order did not increase judicial efficiency and, along with their clients, questioning whether courts have the time to read the voluminous
Respondent suggests its rule and order encourage settlement by “apprising both sides, well in advance of trial, of the facts that will be presented.” Local attorneys reported, however, that unfortunately the rule and order have not aided settlement, because parties take extreme positions in their declarations, causing an increase in animosity and a diminished likelihood of settlement. The various amici curiae, including local practitioners, confidently claim that any increase in settlements achieved by the rule and order occur because litigants generally cannot afford the substantial added litigation costs created by compliance with the rules.
We are most disturbed by the possible effect the rule and order have had in diminishing litigants’ respect for and trust in the legal system. The Contra Costa survey confirmed that litigants believed the rule and order deprived them of the essential opportunity to “tell their story” and “have their day in court,” and felt the rule and order caused the lawyers who drafted the declarations to be the persons testifying, not themselves. “Members uniformly report that their clients are stunned to be told that they will not get to tell their story to the judge,” and express “shock, anxiety and outrage” along with the belief that “they had been denied their right to have their case heard by a judicial officer.” Overwhelmingly, practitioners criticized the rule and order for creating what their clients understood to be a lesser standard of justice for family law litigants.
A recent statewide survey reflects a similar concern with court procedures that do not permit family law litigants to tell their story, a circumstance reported by litigants to diminish their confidence in the courts. (Judicial Council of Cal., Admin. Off. of Cts., Rep. on Trust and Confidence in the California Courts (2006) Phase II, pp. 31-36 [self-represented litigants “express[ed] frustration that they did not have a chance to fully explain their
We are aware that superior courts face a heavy volume of marital dissolution matters, and the caseload is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. (See Judicial Council of Cal., Rep. on Statewide Action Plan for Serving Self-Represented Litigants (2004) Exec. Summary, p. 2 [80 percent of the cases have at least one unrepresented party by the time of disposition].) In its 2006 report, the Judicial Council estimated that “although family and juvenile cases represent 7.5 percent of total filings, they account for nearly one-third of the trial courts’ judicial workload . . . .” (Judicial Council of Cal., Ann. Rep. (2006) p. 26, italics added.)
In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. But family law litigants should not be subjected to second-class status or deprived of access to justice. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trial proceeding governed by the rules of evidence established by statute. It is at least as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent‘s future involvement in his or her child‘s life, dividing all of a family‘s assets, or determining levels of spousal and child support. The same judicial resources and safeguards should be committed to a family law trial as are committed to other civil proceedings.
Trial courts certainly require resources adequate to enable them to perform their function. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting procedures that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources. (See Cal. Stds. Jud. Admin., § 5.30(c).) As stated in the advisory committee comment to the California Standards for Judicial Administration: “It is only through the constant exertion of pressure to maintain resources and the continuous education of court-related personnel and administrators that the historic trend to give less priority and provide fewer resources to the family court can be changed.” (Advisory Com. com., Cal. Stds. Jud. Admin., foll. § 5.30(c).)
IV
The judgment rendered by the Court of Appeal summarily denying the petition for writ of mandate or prohibition is reversed, and the matter is remanded to that court with directions to issue a writ in terms consistent with this opinion.
Kennard, J., Baxter, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
WERDEGAR, J., Concurring.—I agree that the superior court‘s local rule and trial scheduling order were inconsistent with statutory provisions of the Evidence Code and Code of Civil Procedure, particularly the hearsay rule of