*1 Third Dist. Oct. C067800. 2013.] [No. WOOLSEY. ANNA and CLARK
In re the Marriage WOOLSEY, Respondent, ANNA WOOLSEY,
CLARK Appellant. PUBLICATION* FOR PARTIAL ] [CERTIFIED 8.1110, Court, 8.1105(b) opinion this certified rules *Pursuant California Rules VT, IV, VII, HI, the Discussion. parts VIH of exception publication *6 Counsel for J. Finelli Appellant. J. Finelli and
Law Office of Stephanie Stephanie Burlingham Respondent. and Steven R. Burlingham Till & Gary, Opinion case, Woolsey per- Clark
HOCH, In this dissolution appellant marital J. a recon- in Woolsey church-sponsored suaded Anna participate respondent division of a of issues regarding that turned into mediation1 ciliation session resulted children. The mediation of their two custody and support, property, community property, that divided agreement in a marital settlement and a presented Anna’s2 entitlement to spousal support, waived permanently would remain in Anna’s primary children in which parenting plan parties’ all of their had disclosed declared that agreement care. The the mediation. during financial matters of Civil Procedure under Code agreement
Anna moved enforce of the mind about the terms his apparently changed section 664.6. Clark trial, the court entered After entry judgment. agreement opposed and visitation custody The court also made on the agreement. determinations in the same judgment. unen- is (1) the marital settlement contending
Clark appeals, under Code sections Family financial disclosures timely forceable for lack of Court of 2105,3 with the Superior parties’ noncompliance Rules, (rule 30.7) reversal requires Local 30.7 County, Placer because he was prevented violated (3) his due were process rights judgment, trial, to the extent marital his evidence fully from presenting enforceable, engage it required was settlement communication person persons facilitate process in which a neutral Mediation “a (Evid. agreement.” reaching mutually acceptable disputants to assist them between the Code, (a).) subd. § Marriage In re reference, (See parties by their first names. we refer to the For ease 475-476, Cal.Rptr. Smith fn. Cal.App.3d Code. Undesignated statutory references are *7 arbitration, further mediation (5) undue on influence Clark during mediation unenforceable, renders agreement (6) the trial court did not deceit, address the issue properly (7) order was custody not made in the best children, interests of the (8) and parties’ the trial court failed to to properly Clark’s respond objections the tentative ruling.
We conclude the trial entered on properly judgment the marital settlement contentions, In agreement. to Clark’s response we conclude who parties agree to settle their disputes by private mediation also agree to make financial disclosures that do not meet the technical procedural 2105; requirements sections 2104 and (2) rule 30.7 is invalid insofar as it additional imposes on a requirements mediated settlement agreement beyond statute; those (3) the specified by record reveals Clark received full and fair trial; (4) Clark the right forfeited to further mediation or arbitration of the issues; (5) the mediation confidentiality Evidence imposed by Code section 1119 undermines arguments Clark’s regarding undue influence and there is no of undue presumption influence a marital settlement reached as mediation; the result of (6) Clark’s failure to any provide legal authority his deceit supports argument forfeits the issue on Clark’s chal- appeal; to the lenges and custody visitation terms in the do not establish court; abuse of discretion by the trial and the trial court’s statement decision is adequate addressing issues for trial. presented Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Marriage and Separation The children, married in 2001. had two September They who were Grant, bom in Claire, California: who was bom in July who was bom in 2004. February lived in California until moved to they Missouri in December 2007. Clark and Anna on 30 or separated April May California, Anna and 2009. the children moved back to where Anna had lived her entire fife for the 18 months she resided in Missouri. except Anna July filed petition legal separation. Agreement
Mediation Results in a Marital Settlement In August Clark reconciliation Anna achieve hoped her urged in mediation Live at Peace participate provided by Ministries. Anna was but skeptical agreed participate. 20, 2009,
Mediation on began August but no to' reconcile was Thus, reached during first two the focus of the for the days. mediation *8 other and custody, community property, on division of next two was days and mediation was successful of The marriage. related to dissolution issues 23, on August agreement a marital settlement signed personally the parties community division of issues of custody, resolved 2009.4 agreement and Anna. between Clark a for communication and set plan property, up Clark agreement, settlement the marital day signed On the same the for legal separation. was served with Anna’s petition and final declaration filed her preliminary In Anna September later, the A month and declaration. disclosure and income expense they which agreed and visitation in regarding a custody entered stipulation for the “at all times” except period have of the children Anna would custody 1, 2009, and the Thanksgiving holiday period November from October 30 to during the children Anna was entitled keep of November 21 to 2009. holiday. the entire Christmas dissolution of filed an amended seek
In Anna January petition month, a declaration of Clark served That same marriage. preliminary filed a final disclosure. disclosure. He never Settlement
Trial on Marital Enforceability of Custody and on and Visitation Agreement Issues of the marital to enter to enforce judgment Anna moved February 664.6. Clark of Civil Procedure section settlement under Code a trial occurred one-day on the and entry agreement, opposed while Anna himself During trial Clark represented on 2010. August Jack D. Anna and examined Clark cross-examined had counsel. legal Love, M.A., M.F.T., Clark testified on Although the child mediator. custody his behalf, During for Love. did call witnesses any except his own he not asset that was not he was not aware of marital any Clark admitted testimony, 2009 mediation. during August discussed it.” did not make “That’s Clark testimony,
At the end of his Clark stated: he wanted to introduce. offer of additional evidence any regarding proof as a marital agreement, a refer to the document Although separation titled we shall related to dissolution comprehensively it resolved issues settlement because parties entered the marital just At the same time the marriage—rather separation. than statement,” agreed use which agreement, they following public “the separation also on reconciling relationship. days their and for four to work towards explained: “Clark Anna met God, heard each glorify Clark and Anna the desire to honor help, With God’s divorce, they filing desire to live life Although they are other and addressed their failures. they grow as pray Please for them they parent to serve and their children. peace as continue children, God, and others.” relationship with their in their Instead, he agreed posttrial briefing schedule. Consistent with that schedule, brief, Clark filed a brief. posttrial In his did Clark not request *9 evidence, court take additional nor did he he object had not received a full trial on the contested issues.
The trial court granted Anna’s motion to enter on the judgment marital settlement agreement under Code of Civil Procedure section 664.6. The court also awarded joint legal physical with a custody, schedule that parenting confirmed Anna as the for primary caregiver the children.
Clark timely from the appealed judgment.
DISCUSSION I Financial Disclosures
Clark contends the marital settlement agreement be set must aside because failed to parties make the financial disclosures in with compliance sections 2104 and We 2105. reject contention.
A. Family Code Disclosure Requirements Code, Under the “parties marital dissolution proceedings have an affirmative duty to exchange both a and a final declara preliminary disclosure, tion of liabilities, detailing all of their assets and prior judgment (In entered.” being re (2000) 82 Marriage McLaughlin of end, To this the version of section effect at the time was that, entered governed disclosures preliminary by court requiring “[e]xcept by cause, order for good as in Section or provided after concurrently service of the for dissolution or of petition nullity marriage legal separa- tion each shall parties, serve on the other party party a preliminary disclosure, declaration of executed under on a form penalty perjury (Former Judicial Council.” prescribed by (a), subd. as amended § by Stats. ch. § section 2105
Similarly, final financial disclosures requires by providing that, cause, order good for before or at the “[e]xcept time issues other or support for the resolution property
enter into trial, or, days than 45 no later goes if the case lite support, than pendente date, attorney or the party trial each party, the first assigned before of disclosure matter, a final declaration the other party this shall serve on declaration, under penalty perjury executed current income and expense Council, mutually unless the the Judicial a form on prescribed the final declaration of disclosure.” waive
B. *10 and Mediations or Arbitrations Nonjudicial Private 1993, a and in as part statutory “Sections 2104 2105 were enacted to action meet their to ensure that a dissolution designed parties scheme 2100.)” (§ their assets and liabilities. to make full disclosure of fiduciary duty 1497, 1507-1508 (Elden Superior Cal.App.4th [62 Court of whether the (Elden).) question Elden involved Cal.Rptr.2d 322] 2104 and 2105 and sections disclosure requirements specific procedural to marital elected to settle issues pertaining even when the parties applied 1507-1508.) The (53 at dissolution arbitration. pp. private their to nonjudicial Elden court held that to submit by agreeing dispute arbitration, from the “controversy procedures was removed parties’ (Severtson v. Co. to trials. Williams Construction applicable (Elden, 1508.) 400].)” at Cal.App.3d p. Cal.Rptr. and
In 2105 for excusing the disclosure of sections requirements cases, “Although recog- Elden court we arbitration nonjudicial explained: set within the reasons for the disclosure sections forth nize public policy Code, to have agreed that the a dissolution who parties we conclude issues are entitled to arbitration of their property adopt to engage private Here, other, for example, for financial disclosure. summary more procedures arbitrator, had made the to assured him that they according parties circumstances, because parties Under these and disclosures. necessary as those set a number of as rights just important arbitrations waive private here, we conclude the trial at issue forth in disclosure provisions to the that Husband and Wife were holding required—prior court erred 2105. If section required by arbitration—to submit the disclosure statement their or a enter an to settle property to marital dissolution arbitration, do so without they nonjudicial may issues support private (Elden, supra, Cal.App.4th with section 2104 or section 2105.” complying at 1508-1509.) The result in pp. Elden was further supported “by strong in favor of public policy arbitration as and speedy relatively inexpensive (Id. means of dispute resolution.” at
We agree with Elden that to a marital action dissolution out of opt litigation by agreeing to an alternative resolution mecha dispute nism that does not involve all the formalities of an required adversarial mediation, system arbitration, of justice. Private like nonjudicial offers and less speedy expensive resolution of approach arising issues from Court, marital dissolution. As recognized by the California “media Supreme and, tion a form of alternative resolution dispute encouraged [is] in some cases required by, the Legislature.” (Foxgate Assn. Homeowners’ v. Bramalea California, Inc. 26 Cal.4th P.3d 1117] (Foxgate).) “Implementing alternatives judicial resolution has dispute been a strong legislative since at least 1986. policy year Legislature enacted provisions dispute resolution not programs, including but limited mediation, conciliation, arbitration, as alternatives to formal court which proceedings it found to ‘unnecessarily costly, time-consuming, complex’ as contrasted with (Bus. noncoercive resolution. & Prof. dispute Code, 466.)” (Foxgate, added.) §§ italics *11 mediation, arbitration,
Private like nonjudicial offers an alternate approach to resolve disputed issues from a marital arising dissolution. Requiring technical compliance disclosure rules for adversarial designed litigation would undermine the strong public of to choose policy allowing parties and less avenues for speedy costly resolving their Parties who disputes. agree to settle their by mediation also to dispute private make financial may agree disclosures that do meet not the technical of sections procedural requirements Thus, 2104 and 2105. strict with sections 2104 and 2105 is not compliance for mediations that required private address issues out arising of marital dissolution.
C. Postmediation Disclosures Prior to Entry Judgment of case, After a mediation a marital dissolution must nonethe parties less with section 2106 of the court. comply entry judgment by trial In prior section 2106 that “no be pertinent part, instructs shall entered with judgment to the without each or the respect parties’ rights for property party, attorney matter, that in this executed and served a the party having of final copy of declaration disclosure and current income and declaration.” expense to this are disclosure written waivers Exceptions requirement (d),5 cases default involving judg- section subdivision under parties to waive disclosures section and motions of meaning ments within cause under section 2107.6 for good case, their finances made disclosures of Anna and Clark multiple
In this that culminated agreement The marital settlement entry of prior judgment. have they fully agree declares that “Clark Anna from mediation Thus, addresses the parties’ all financial matters.” the agreement disclosed debts, real for division of their property, cash assets and provides bill, on the cable as whose name should appear addresses such specifics and financial of life insurance investigation options, policies, health insurance Moreover, to Anna even confirms agreement their children. accounts of children’s such as items specific and Clark items of personal property decorations, blankets, furniture, Christmas linens and exercise equipment, forgot event Clark and Anna and bookshelves. gear, camping includes the catchall address of any provision piece property, at Clark’s or sold may unwanted items “[a]ny remaining disposed discretion.” Anna and Clark both judgment,
After the mediation and before entry disclosures. Anna served her served each other with financial preliminary However, at the as her disclosure. final disclosure same time preliminary filed a Clark never final disclosure. the trial court was from reject
We argument precluded for lack of disclosures. entering on the marital settlement (d) a mutual waiver of provides: stipulate Subdivision of section 2105 “The disclosure, (a) concerning the final declaration of execution requirements of subdivision open by separate stipulation. The penalty perjury a waiver under entered into in court or complied following representations: all of Both have waiver shall include HO *12 completed the have and preliminary with Section 2104 and declarations of disclosure been (2) exchanged expense exchanged, parties completed have and a current income and Both [f] declaration, earnings, regarding party’s that that includes all material facts and information accumulations, [j[] (3) fully 2102 and expenses. parties complied and Both have with Section disclosure, fully including all augmented the declarations of disclosure of preliminary have liabilities, regarding the all assets and the facts and information characterization of material in it contended community property to be or which is valuation of all assets are contended interest, obligations to community of that are contended be the has an the amounts all liability, community The community obligations or it is the has [f] for which contended parties. voluntarily by into each of the knowingly, intelligently, is entered waiver HO obligations legal does limit the disclosure party Each understands that this waiver not obligations have been penalty perjury a statement of that those parties, but rather is under obligations noncompliance with those will result party fulfilled. Each further understands setting judgment.” in the court aside the (b)(3) served party properly 2107 allows a who has pertinent part, subdivision of section receipt noncomplying party’s the of move for a “waiver of of declarations disclosure to final declaration of disclosure pursuant of to Section 2104 or preliminary declaration disclosure pursuant to Section 2105.” The parties did serve each other with disclosures prior to trial and the subsequent entry of While judgment. Clark only served his preliminary disclosure, he be may not heard to about his own complain failure to serve Also, final the financial disclosure. urged Anna to in having media engage tion, Clark cannot now he received full complain disclosure the during mediation rather than formal document under section 2104 or section 2105 (Elden, to the prior mediation. 1508-1509.) Cal.App.4th pp. “a Allowing undo a non-complying after party unilaterally judgment [to] trial when he or she would have to obtain disclosure before trial comply a most set of perverse [would] incentives: ... party create[] could [A] mum, deliberately not with disclosure comply see if the requirements, keep trial results in and then the acceptable judgment, have opportunity obtain better result the by pulling non-disclosure card out of his or her sleeve on or trial new motion. That appeal is sort of of absurdity statutory (In result that courts do not simply countenance.” re Marriage Steiner & of Hosseini Accord we Clark’s ingly, reject argument the lack of financial disclosures trial precluded the court from subsequently entering on medi judgment ated agreement.
II Rule 30.7 the Placer Local County Rules Court of argues Clark next the trial erred entering judgment on marital settlement because it did not agreement with the of rule comply requirements 30.7 that be agreements such notarized and admonish of their right parties seek legal counsel.7 We conclude rule is 30.7 invalid insofar as the rule on a imposes requirements marital settlement agreement addition to those provides: Rule 30.7 property agreement, stipulation agreement any “No settlement entry or or or order judgment parties any relating property, custody, wherein settle support, issue visitation or paternity approved by will be incorporated Court or reference into a without meeting following requirements: counsel, If both parties represented by signed by “A. are be parties must both respective and their counsel. counsel, any If represented by signed by “B. one be must attorney represented party. signature both and the for the of the unrepresented party notarized, acknowledged 1181(a) must a clerk the Court under Civil before Code § *13 appear immediately following and must after the date statement: [Effective 7/1/01] “ undersigned party attorney ‘The regarding subject has been advised to consult an agreement, matter of this but to has declined do so.’ counsel, If represented by signed by “C. neither is be party parties. must both notarized, signatures the parties acknowledged The of must be before of a clerk the court 1181(a) immediately under Civil Code and are to appear following § after the statement: 2550, 1123, and Code Code section Code section by Evidence
required .8 664.6 of Civil Procedure section A. with Rule 30.7 Trial Excused Compliance The Court agree- the marital settlement challenge trial to rejected The Clark’s finds that 30.7 follows: “The court with rule as ment noncompliance and prepara- attorney negotiation was an represented neither party mediation through it was all accomplished of the Settlement Agreement; tion County Superior with Placer the Live at Peace Ministries. Compliance with were signatures Rule is not The required. Court and 30.7[A] [B] 30.7[C], in order which is a requirement notarized as Rule required by not in this case that are signatures genuine, the Court can be assured that are theirs. issue, that the signatures is an have acknowledged not Conciliation, to which the parties for Christian In the Rules of Procedure legal advised of their right representation bound were agreed they the mediation process.”
B.
Court
Review Local Rules
in the seminal case of
As the California
Court
Supreme
explained
483, 163 P.3d
Cal.Rptr.3d
Elkins v.
Court
in order to insure orderly administration of justice. [Citation.]” (Rutherford, supra, 16 967.) Cal.4th at p.
“. . . A trial court is without local authority adopt rules procedures that conflict with statutes or with rules of court Judicial adopted Council, or are inconsistent with the California Constitution or case law. 967-968; (Rutherford, v. at supra, also Hall Superior Court see pp. (2005) 908, Cal.App.4th 916-918 As Cal.Rptr.3d Government provided [35 68070, (a): Code section subdivision ‘Every court make rules for may its own officers not inconsistent with law or government and of its government with rules adopted prescribed by Judicial Council.’ (Italics added; Witkin, (4th Courts, 204, see also Cal. 1996) 272; Procedure ed. id. § sum, (2006 87-88.) courts supp.) pp. local not create § their own rules of evidence and (Elkins, in conflict procedure with statewide statutes.” supra, at 1351-1352.) Cal.4th pp.
One court summarized: “A rule court of may go beyond the “so as it of a related statute” reasonably long provisions only furthers statutory purpose. (Butterfield v. 1 Cal.2d P.2d [34 Butterfield points 145] authorities in requiring support [rule motion change Mann venue]; v. Cracchiolo 38 Cal.3d Cal.Rptr. [210 P.2d time file limiting opposition summary judgment 1134] [rule However, motion].) if a statute even or inferentially reflects a implicitly legislative choice require rule of court particular procedure, may not deviate procedure. (People Hall [(1994)] [950,] from that v. 8 Cal.4th 961-962 432, 883 P.2d Cal.Rptr.2d limiting factors aggravating [35 to be 974] [rule considered in sentence enhancements conflicted with imposing Legislature’s factors]; evident intent" to full Court Reporters apply range California Assn. Judicial Council v. [15,] [(1995)] 39 26-31 Cal.App.4th of California electronic Cal.Rptr.2d court permitting recording superior [46 44] [rule conflicted with proceedings intent legislative such implicit proceedings Cox Court recorded]; Superior [(1993)] stenographically 19 Cal.App.4th [1046,] 1050-1051 notice of Cal.Rptr.2d requiring 751] [local motion to conflicted statute suppress preliminary hearing with raising (Trans-Action ‘reasonable inference’ no notice is prior required].)” Investors, Firmaterr, Commercial Ltd. v. Inc. 449], added.) italics
And, noted, as the Elkins courts have not hesitated to “Reviewing strike down local court rules or policies ground on the are inconsistent they statute, with California Rules of Court promulgated by Judicial Council, or with case law or constitutional law. decisions have Appellate invalidated local rules or their restricted areas of affected many application (Elkins, litigation, including dissolution actions . . . .” 41 Cal.4th at
897 the by local rules cited down striking A notable decisions example among v. Court Superior Elkins court is the case of Hogoboom (1996) 51 Cal.App.4th (Elkins, 1352, 5.) In fn. 41 Cal.4th at p. 653 Cal.Rptr.2d [59 254]. family a a imposing struck down local Hogoboom, the Court of Appeal in to fees (51 addition by established statute. law mediation fee specifically Hogoboom that the Legislature court concluded at Cal.App.4th law to fees for family “has so covered law matters by general relating fully must conciliation court that it and domestic violence mediation in occurring law an additional fee on family considered a matter of state concern” that {Ibid.) addi- a an local rule Accordingly, imposing mediation is precluded. {Ibid.) tional fee court mediation was held invalid. family on C. in Marital Judgment Agreements on Mediated Entry of Proceedings Dissolution 2550 to written community by Section allows divide parties property the in a disso marital agreement.9 contemplates 2550 parties “[S]ection of but community lution action can on a division agree lopsided property, (2) if it (1) by is evidenced a written of the or only by agreement parties; the If is entered agreement oral of in court. such an stipulation parties open court must into, the or oral the written in-court parties’ agreement accept re Marriage property. {In of their stipulation regarding disposition of Cream 575].) The (1993) ‘only 13 91 court’s Cal.Rptr.2d Cal.App.4th [16 is to a marital role with of regard stipulated disposition property proper and, into disposition if accept requested, incorporate stipulation (Id. 91.)” (In re Dellaria & Blickman-Dellaria Marriage judgment.’ of v. Reed Mejia accord, 802]; 172 Cal.App.4th Cal.Rptr.3d [90 166].) (2003) 31 74 P.3d Section Cal.4th Cal.Rptr.3d [3 when does not notarization or to seek counsel legal advisement require a allowing written to divide agreement property. “ note a
We settlement favored ‘[property agreements occupy position Adams 621, 624 the law state . .’ Cal.2d {Adams in of this . . 265].) P.2d Courts are reluctant to disturb them for ‘except equitable therefore, tainted A is not considerations. settlement property agreement, fraud is not in of the confidential relationship or or violation compulsion on oral upon parties, of the or provides: “Except Section 2550 the written division, court, a in this in stipulation parties provided or as otherwise open in shall, marriage legal separation parties, the court proceeding for dissolution of legal marriage, judgment separation its judgment either in its of dissolution of division, jurisdiction property or at time if it to make such parties, expressly a later reserves community equally.” divide estate of the of the parties is valid and on binding (In the court. (Ibid.)” re [Citations.]’ Marriage Egedi
Once a settlement is entered into parties, they avail themselves of a and effective avenue quick for enforcement by making end, motion enter on the agreement. To this Civil Code of Procedure section “If 664.6 provides: litigation pending stipulate, *16 writing a the signed by outside the of the parties court or presence orally court, case, thereof, before the court, for settlement of the or the part upon motion, enter judgment pursuant to the terms of the If settlement. the by the court requested parties, may retain over the jurisdiction parties to the enforce settlement until in full of the the performance terms of settlement.” “
We that recognize for statutory settle procedure enforcing ‘[t]he ment agreements under section 664.6 is not exclusive: It an is merely valid expeditious, alternative created. statutorily (Kilpatrick (1990) v. Beebe 1527, 219 Cal.App.3d 52].) 1529 Settlement Cal.Rptr. agreements may [269 also enforced motion for by summary by a judgment, separate suit or by amendment equity of to raise settlement as an pleadings (Nicholson 1671, affirmative defense.’ v. (1991) Barab 233 1681 Cal.App.3d 441]; [(1995)] see Levy [578,] also v. Court Cal.Rptr. Superior 10 Cal.4th [285 586, 878, 171]; 5fn. P.2d 44 Cal.Rptr.2d [(1996)] 896 Robertson v. Chen [41 [1290,] 1293 664.6 Cal.App.4th Cal.Rptr.2d is not [52 264] [‘Section means of a exclusive settlement it is enforcing a agreement; simply summary available when certain procedure satisfied’].)” (Gauss are GAF prerequisites v. (2002) 1110, 103 Corp. 370].) 1122 Cal.App.4th Even Cal.Rptr.2d [127 exclusive, it is not of though Code Civil section Procedure 664.6 is intended to a means an enforcing for that provide agreement more requires nothing than a motion. “The single Legislature created this to not benefit procedure but also the it only system, of the burden parties justice relieving of more (Provost and v. time-consuming processes.” Regents University expensive of 591].) Cal.Rptr.3d [135 California Code of Civil Procedure section 664.6 that a settle requires only ment to agreement be reduced and or writing signed by orally parties, mediation, court. a stated in For written settlement reached in a agreement that Evidence Code also it demonstrate a intent of the requires present (See to be bound the terms of the Fair by agreement.10 generally v. Bakhtiari 653].) 40 Cal.4th P.3d Cal.Rptr.3d agreement provides: prepared Evidence Code section 1123 “A written settlement of, to, mediation, inadmissible, disclosure, pursuant protected or is not made or course from by agreement settling provisions chapter signed by any of this if the is and [] n (a) following agreement conditions are The that it is provides satisfied: admissible disclosure, (b) that it is subject provides or words to effect. The Q] the strong public to further enacted statutes has
The Legislature (Elden, supra, resolution of disputes. out-of-court encouraging policy 51 Cal.4th 1507-1509; Court v. Superior see Cassel Cal.App.4th atpp. has imposed Legislature 244 P.3d expedient agreements provided for settlement specific requirements Code or in the Evidence nothing There is them. enforcing method settlement marital Civil Procedure requires in the Code of Code or to inform unrepre language or contain talismanic to be notarized 1123; Code, Earn. (See Evid. counsel. right legal § about the sented parties Thus, 2550; Proc., addition of Code, 664.6.) requirements Code Civ. § § agreements mediated marital the California codes for those by imposed requirements the Legislature’s specifications inconsistent with not change court may It been settled long has enforceability. “[a] An by statutory provision. established or add to requirements procedural a statute is to add to those prescribed order requirements attempting [(1934)] 1 (Cf. an extent a void. nullity *17 such Butterfield Butterfield 244, 252 227, 145]; [(1922)] 60 Cal.App. v. Henry P.2d Willett Cal.2d [34 696, P.2d 698].)” (Conae (1952) v. Conae 109 Cal.App.2d [241 P Thus, additional invalid insofar as it 266].) imposes we conclude rule 30.7 is that resolves on a mediated agreement on entry judgment requirements marital dissolution issues. differing, perhaps Clark could result in
To the holding urged by adopt of court. This case provides from various local rules conflicting, requirements Here, a mediation availed themselves of program the parties apt example. mutually yielded Peace Ministries. That program offered Live at by However, if statutes. consistent with the governing agreement fully acceptable otherwise valid agreements to invalidate such trial courts have discretion rules, local of authenticity imposed based on additional requirements have to in California would Peace Ministries and other mediators then Live at likely would most agreement the mediated settlement where anticipate the county the local rules governing comply filed and understand However, file for dissolution. where will they not know of filing. for in “[Bjecause statute venue governing proceedings there is no specific 395, section of Civil the venue rules of Procedure] legal separation, [Code or govern nullity separa- civil actions (a), generally, subdivision applicable actions, county ordinarily for trial and the proper place tion (1992) 11 Court (Forster v. Superior residence.” respondent’s Proc., 258]; 664.6 782, but see Code Civ. § Cal.Rptr.2d [either 786-787 [14 a mediated agreement].) a motion to enforce bring party may effect, (c) agreement expressly All binding words to that [f] enforceable or or (d) to its disclosure. orally ['][] with Section agree writing, or in accordance fraud, duress, dispute.” illegality that is relevant to an issue agreement is used to show short, Code of Civil Procedure section 664.6 an efficient provides and certain manner in which to enforce a settlement so as that long noted, section’s are satisfied. As our Court requirements has “the Supreme 664.6, Legislature enacted section which created a summary, expedited to enforce procedure settlement when certain agreements requirements decrease the likelihood of are met.” misunderstandings (Levy Court Superior (1995) 10 Cal.4th 171].) 896 P.2d This Cal.Rptr.2d intent would be decline legislative thwarted if a trial court could to enforce an otherwise valid settlement on grounds section 664.6 employs (See the word v. Ledesma “may.” People 16 Cal.4th 95 [65 Thus, P.2d trial courts lack discretion to strike down mediated agreements otherwise with state law. comply 30.7,
We note that even the trial court in this case did not enforce rule excusing because the marital settlement performance agreement comported with the intent the rule. It would be underlying incongruous ignore statutes mediated governing in order to trial agreements give courts discretion local rules of court. ignore
We affirm the trial court’s entry on the marital settlement but do agreement, so because rule 30.7 cannot impose requirements enforcement of mediated settlement in addition to those agreements specified Code, 1123; Code, 2550; Proc., (Evid. statute. Earn. Code Civ. § § 664.6.) §
Ill, IV* *18 V Undue Influence court, In the trial Clark the marital settlement is unen- argued forceable because the mediator in undue influence engaged during mediation. On he his to assert Anna exerted undue changes argument appeal, he influence on him the mediation. As of his asserts during part argument, Anna In unfair division of because of mediation. so gained property Clark extended to mediation arguing, acknowledges confidentiality pro- Elsewhere, undermines his Clark even notes he ceedings argument. objected the intent admission of evidence into regarding entering the marital settlement “on the basis of mediation confidentiality.” footnote, ante, page 881.
*See by undue influence precluded Clark’s assertion of We conclude addition, there is Code. the Evidence confidentiality imposed mediation reached agreements marital settlement undue influence in no presumption a result of mediation. as
A. Confidentiality Mediation “No evi (a), provides: Evidence Code section subdivision of, in the made for the purpose said or admission any dence of anything to, of, consultation is admis a mediation or a mediation course or pursuant not be of the evidence shall or disclosure discovery, sible subject action, arbitration, civil administrative adjudication, in any compelled, law, which, can be testimony other noncriminal proceeding pursuant section the Califor Evidence Code given.” Construing to be compelled the confiden are no Court that there exceptions nia Supreme “conclude[d] the content or to the limits on statutory of mediation communications tiality communica nor a reveal of mediator’s Neither mediator party reports. 4.) Cal.4th at More (Foxgate, supra, tions made mediation.” during even extends confidentiality Court held that mediation recently, Supreme a client against brought by coercion deception to preclude complaints a mediation. in connection with his own for the conduct attorney attorney’s Court, Clark (Cassel v. Superior 51 Cal.4th at Accordingly, in the influence Anna or other any participant cannot establish undue Evidence Code confidentiality mediation under the mediation provisions section 1119.
B. Undue Presumption of Influence Anna showing actually to introduce evidence Rather than attempting mediation, the rule Clark resorts to in undue influence during engaged *19 “ law, transaction one advantages spouse, that an interspousal “[t]he ‘[w]hen been transactions to have such from considerations of public policy, presumes ’ ” (In Kieturakis (2006) 138 Marriage re undue influence.” induced In re Marriage (Kieturakis), quoting 84 Cal.App.4th Cal.Rptr.3d [41 119] end, 673].) To this Haines (1995) 33 293 Cal.Rptr.2d Cal.App.4th [39 to agreement in the marital settlement the division of property Clark parses basis, Anna had this Clark asserts Anna a better deal. On got assert led to the the mediation undue influence in burden of disproving unfair We disagree. agreement. purportedly Kieturakis, the Court of held that marital settlement Appeal agreements as a result of
produced mediation cannot be to be the presumed product (Kieturakis, undue influence. 85.) at supra, As the Cal.App.4th p. “ Kieturakis court explained, ‘Voluntary self-determination participation are fundamental com., of mediation . . . .’ principles Com. Cal. (Advisory Court, 1620.3; also, Rules of see Travelers e.g., Casualty & Co. v. Surety Superior Court 126 Cal.App.4th Cal.Rptr.3d 751] of self-determination is [concept critical to mediation Saeta v. process]; Court Superior Cal.App.4th 610] [same].) It can thus be that most mediators would . . expected . consider it their duty determine whether the are attempt under their ‘acting own free will’ in the mediation. between are a spouses’ ‘[P]ower imbalancefs] al., concern when recognized are family matters mediated. et (Knight Cal. Practice Guide: (The Alternative 2004) Resolution Rutter Dispute Group 3:516, (rev. 3-81 # 1996), omitted) italics p. iswho [spouse overbearing f Therefore, dominates conversation have advantage].) me- ‘[d]ivorce diators work to balance generally the negotiating between the power parties. This tends to agreements that are more fair and produce rather than voluntary, al., (Roth coerced.’ et The Alternative Resolution Practice Guide Dispute §31:5, Thus, 31-5.) while mediation is no p. guarantee against influence, exercise of undue it should to minimize help unfairness in by which marital settlement process agreement is reached.
“Even more of undue importantly, apply influence to presumption mediated marital settlements would severely undermine the practice such mediating agreements. would turn the Application presumption shield of mediation into a sword which confidentiality any unequal agreement could be invalidated. We do not believe that the could Legislature have intended that result when it provided fiduciary duties on spousal one hand and for mediation (Kieturakis, on the other.” confidentiality supra, 85.) at Cal.App.4th p.
Clark contends Kieturakis was decided but offers no incorrectly explana- tion as to how that decision err. In might addition to us to urging reject Kieturakis, Clark also holding that case it attempts distinguish by noting involved a marital settlement it stated was not the expressly (Kieturakis, of undue influence. 64.) at product supra, Cal.App.4th Clark notes the marital settlement in this case no declara- contains tion that it was free undue influence. from This is a distinction without a difference. shows,
As Kieturakis’s of mediation survey mediators authority (Kieturakis, strive to render fair and negotiations voluntary. Combined the mediation confidentiality
903 of undue influence Code imposes, presumption Evidence section 1119 at (Kieturakis, mediation. in favor of undermines the strong public policy addressed the 85-86.) requirements has Legislature already pp. Code, 1123.) It is not our (Evid. province admissible mediated agreements. § are must declare they that mediated agreements new impose requirement (Osborn Corp. are to be valid. v. Hertz free from undue influence if they (1988) 205 711 Cal.Rptr. Cal.App.3d [252 the mediation yielded
We also Clark’s assertion that reject Anna. It is well settled favoring that resulted in an unfair division property of marital to an division agree writing property. parties may unequal (In Cream, Moreover, re 90.) at Marriage supra, Cal.App.4th the Kieturakis court’s concern Clark’s would crediting argument implicate relatively mediated settlements because “[m]any might jeopardized them, be found to have been likely few of close would scrutiny, upon [(¡[]To countenance that result would contravene the strong perfectly equal. (Code and settlement. Civ. mediation legislative judicial favoring policies caseloads; Proc., (c) reduce courts’ public subd. help § [mediation interest that mediation ‘be and used where encouraged appropriate dictates Code, courts’]; (b) & use of mediation [greater Bus. Prof. subd. § 407,] v. (2004)] 33 encouraged]; Rojas Superior Court[ should be Cal.4th[ Stewart mediation]; P.3d favoring Cal.Rptr.3d [policy [15 260] Preston Inc. [1565,] Pipeline [(2005)] Cal.App.4th re Friedman settlement]; Marriage mediation and favoring [policies 901] is ‘well settled Cal.App.4th Cal.Rptr.2d 412] [it California’].)” settlement a favored property agreements occupy position (Kieturakis, ac- we Clark’s undue influence As Clark argument.
Accordingly, reject Code of Evidence mediation knowledges, confidentiality provisions undue claim of any section 1119 the mediation protect process preclude Further, no of undue influence in marital influence. there is presumption a result of mediation. settlement reached as agreements
VI-VIII* footnote, ante, page *See 881.
DISPOSITION The affirmed. Anna shall her Respondent Woolsey recover Court, (Cal. costs on 8.278(a)(1) (2).) Rules of rule & appeal.
Hull, J.,P. Acting concurred.
MURRAY, J., I concurin the result. Concurring.
I write because I with the separately disagree in II majority’s analysis part Discussion, of the in the which invalidates a local rule of court in its majority entirety. Rules,
The
invalidates the
majority
Court of Placer
Local
Superior
County,
(local
30.7),
rule 30.7
which
that no marital settlement
provides
agree-
(MSA)
ment
an
“will be
unless
involving
litigant
unrepresented
approved”
the
is notarized or
the
unrepresented party’s signature
acknowledged by
“
clerk,1 and the
below the
under-
signature
notice:
‘The
appears
following
has been
signed
advised
consult
party
attorney regarding
subject
”2 (Id.,
matter of
B.)
this
but has declined to do so.’
subd.
Clark
agreement,
contends the written MSA is invalid because it does not meet these require-
rule,
ments. In
cursory briefing concerning
validity
consisting
sentence that
in the
single
essentially
argument
mirrors
advanced
cryptic
court,3
trial
Anna contends that the local rule is invalid because a single
of the rule—the
with Code of Civil
requirement
notary requirement—conflicts
hand,
that the
majority,
Procedure section 664.6.
on
other
concludes
local rule is invalid because it
two
and the
notary
imposes
requirements—the
to counsel admonition
are in addition
right
requirements—which
proce-
in
Code
dures
section
Code of Civil Procedure section 664.6
ante,
894-895, 898-900.)
and Evidence Code section 1123.
(Maj. opn.,
pp.
rule,
I conclude that it is
to reach the
because
unnecessary
validity
the trial court
found that the interest of
that the rule
justice
impliedly
requires
Furthermore,
not be
here.
is not inconsistent
notary
applied
requirement
are,
signatures
provides
verifying
The rule
these two means of
on a written
fact,
notary
parties.
collectively
requirement.”
I shall refer to both means
as “the
those of
right
“the
to counsel admonition.”
requirement
2 I shall refer to this
3
as
brief,
TO
heading
in Anna’s
“AN AGREEMENT NEED NOT BE NOTARIZED
Under
is,
ENFORCEABLE,”
argument
“The local rule is in
appeal
BE
Anna’s entire
on this issue on
Superior
to it. Elkin
Court
41 Cal.4th
yield
conflict with CCP 664.6 and must
v.
[sz'c]
I. with a Local Excusing Noncompliance 30.7, the the of Local Rule language Clark that complains plain “[u]nder therein,” the or the trial court had no authority approve provisions [MSA] a based on an MSA and the trial court violated the rule by entering judgment does with the rule. not comply observed, “Rules of Court should be framed Our court high long ago to, sometimes, work but if adhered they may strictly furtherance justice; Court, the and if there is the other are under the control of way. They always result, the latter should be made to to the they yield reason any apprehend 280, Thus, 287.) calls of v. 32 Cal. (People Williams superior justice.” rules, or to “it is in the of the court to its own always except power suspend require.” their whenever the of justice case from particular operation, purposes 255, P.2d (1964) Cal.2d 777 394 61 (Ad Sharp Cal.Rptr. [40 ams view. To the the contrary, Court has never retreated from this Supreme 18 rule was reinforced in Mann v. Cracchiolo 38 Cal.3d Cal.Rptr. [210 that, Mann, under {Mann). P.2d In our court concluded high 1134] case, of that the trial court abused its discretion circumstances to a a local rule of court to a declaration filed reject opposition applying that it was not filed within the time summary ground motion on 28.) at (Mann, set forth in a local rule. 38 Cal.3d supra, p. period discretion, court cited and that the trial court abused its our concluding high (1983) 146 Grocery discussed v. Von’s Co. Kapitanski Cal.App.3d noted, issue, court “Rigid Faced with similar Kapitanski Cal.Rptr. 839]. with a court’s function to see is not consistent following always high done.” Our supra, justice (Kapitanski, Cal.App.3d from language its observations from Mann and quoted court repeated Court, 41 Cal.4th at in Elkins v. Kapitanski Superior pp. rule that courts
(Elkins). Other courts have followed the suspend when it is in the interest of cases from the of local rules requirements except (See Cattalini to do so. Estate justice Cal.App.3d Witkin, 640]; Courts, (5th 2008) Cal. Procedure ed. Power Cal.Rptr. § Deviate, 292.)4 of Court To This well settled. principle appears I would this venerable here. I conclude that the trial court apply principle had the local it authority excuse rule 30.7 because was noncompliance Mann, Indeed, in the obvious interests of to do so. similar to under the justice case, circumstances of this it would have been an abuse of discretion for the trial There no court local rule to invalidate MSA. was apply dispute MSA; as to whether each to the both party signed contrary, Thus, that the on the MSA were theirs. as the trial acknowledged signatures noted, notary establish purpose requirement—to Further, are fulfilled. the Rules of Procedure for signatures genuine—was *23 Christian Conciliation that the be advised of their right required counsel, and that was done here before the entered into the agreement. view, the trial court’s affirmed on this basis. my ruling appropriately We need not reach the underbriefed issue of the of the local rule. validity
II. of Local Rule of Court 30.7 Validity with Anna contends that the in local 30.7 conflicts notary requirement post.) court, (See Code of Civil Procedure section 664.6. fn. As in the trial been advanced in Anna’s no other theories for the rule have invalidating does not cite other of the rule which briefing; she appellate portions purport- no other statutes.5 conflict with statute she cites edly (a) local courts to Government Code section subdivision authorizes added.) (Italics that are “not inconsistent’ with statute. Accord- establish rules create their own rules of evidence and “local courts not ingly, procedure (Elkins, in at statutes.” 41 Cal.4th p. with statewide conflict added.) italics However, observed in ago our high long Butterfield Butterfield (Butterfield), that the rule P.2d “the mere fact
(1934)
A. on the that it imposes invalidates local rule 30.7 majority ground and Code of Civil in addition to Code section 2550 requirements *24 Procedure section 664.6. the (see ante) fn.
Family begins, upon Code section 2550 “Except added.) Procedure (Italics the Code of Civil agreement parties.” written of to (see ante) parties section 664.6 fn. in “If provides pertinent part, (Italics in a the . . . .” parties litigation stipulate, writing signed pending to added.) can the italicized a language, necessary predicate As be seen by parties, the agreement or Family provides, the written “Except upon Code section 2550 of division, court, in this in a stipulation parties open provided on oral of the in or as otherwise shall, marriage legal parties, of the the court proceeding separation for dissolution of or for legal separation of the judgment marriage, judgment in of dissolution of the in its either its division, jurisdiction property to make such a parties, expressly or at a later time if it reserves (Italics added.) community parties equally.” the the divide estate of parties pending provides pertinent part, section 664.6 “If Code of Civil Procedure signed by parties orally the presence the of the court or litigation stipulate, writing in a outside motion, may enter case, thereof, court, court, part upon of the the before the for settlement added.) (Italics judgment pursuant to the terms of the settlement.” local rule explain but does not how majority The references Evidence Code section ante, 898-899.) As Evidence Code (Maj. opn., pp. with that statute. 30.7 is inconsistent agreement, not a governs only admissibility of a written mediated settlement section 1123 the inconsistency agreement, I no with local rule 30.7. pursuant entered to an see 30.7, which agreement not affected local rule admissibility of a mediated settlement judgment. Consequently, a I will purposes to the an for applies approving court here. not address Evidence Code section 1123 further a written the under Code section 2550 parties Family approving and Code of Civil Procedure the court’s that the section 664.6 is finding have, indeed, entered into written parties agreement. noted,
As the trial court notary purpose requirement in local rule is to ensure that the are signatures 30.7 unrepresented parties This the court that an genuine. gives actually assurance unrepresented party to a written settlement and that a has not been It also agreed signature forged. from to invalidate the seeking agreement by prevents unrepresented party have the agreement. not to been who fraudulently claiming person signed a trial court over an action for divorce denied the Butterfield, presiding that the defendant defendant’s motion for of venue on change ground failed file and a local rule of court. On authorities as points required by the Code of Procedure defendant contended because Civil appeal, authorities, venue did not and governing invoking provision require points wrote, him of a high local him Our against deprived statutory right. but the “It is true that a rule inconsistent with a statute can have no validity; it mere that the rule does not make goes beyond statutory provision fact added.) 1 Cal.2d at italics inconsistent therewith.” (Butterfield, supra, reasoned, a a of venue The court had “Appellant statutory right change therefor; and the rule a upon proper showing grounds requiring points the statutory purpose. authorities is reasonable provision furtherance of rule; No can fall who must with the comply possible hardship upon party added.) (Ibid., claim to that effect.” italics makes no appellant Likewise, of a written MSA have the to a court’s right acceptance to avail themselves right under Code section 2550 and also have 664.6, showing of Code of Civil Procedure section but only upon proper to the MSA. It the court’s satisfaction that both have actually agreed that either is entitled to have the court blindly can hardly argued party *25 a that both sides have actually an MSA in the absence of showing approve in to the court. Like the rule to the written agreed agreement presented local rule 30.7 the goes beyond the in Butterfield, notary requirement Rather, the with statute. but the rule is not inconsistent statutory provisions, the statutory purpose. a reasonable in furtherance of provision 2550, a Code section cases related to Family cites several majority Anna as in conflict in the trial court or on appeal, statute not identified by that under are cited for the proposition rule 30.7. These cases with local 2550, written or oral a trial court “must” accept Code section Family even if the the division of concerning property, of the stipulations parties to a proper court’s role with ‘only regard division is lopsided; “[t]he and, the if is to stipulation of marital property accept stipulated disposition ” (In re Marriage into the judgment.’ the disposition to incorporate requested, 196, 201 Blickman-Dellaria [90 172 Cal.App.4th Dellaria & of Marriage In re (Dellaria), 802], quoting & added italics omitted Cal.Rptr.3d (Cream)-, 81, Cal.Rptr.2d 575] Cream (1993) 13 Cal.App.4th [16 390, 74 P.3d 657, Reed accord, Cal.Rptr.3d Cal.4th Mejia Code section or in However, Family in these cases nothing there is written that a to ensure a court from adopting procedures that prevents fact, the is, reached by an agreement which it is presented document with Indeed, the use notarized. the signatures parties requiring Dellaria in Cream implies disposition” phrase “proper stipulated the before finding accepting a factual should make preliminary the court off on signed have truly to whether the parties at least as agreement, stipulation. of Civil of Code language section the plain
Similar to Code Family ante) court to determine the trial (see fn. requires Procedure section 664.6 Indeed, the statutory resolution. to the agreed stipulated that the have that the trial read as a must be requirement language, “signed by parties,” both has been signed by parties. that the written agreement court assure itself Thus, section 664.6 provides expeditious while Code of Civil Procedure blindly the trial court cannot accept enforcing agreements, method of “ notes, created section ‘The Legislature the majority [the As agreement. system, but also the justice benefit not only procedure 664.6] time-consuming processes.’ it the burden of more expensive relieving (Provost University v. Regents (2011) 201 of California ante, conclu- Providing 591].)” (Maj. opn., before the court approves of a validity signature sive proof party’s it fraud because prevents with the statutory purpose, is consistent and fraudulent forged signatures motions based on claims of and set-aside claims of forgery.9 rule, which allows courts The majority acknowledges Butterfield as long related to statute as go beyond provisions
enact local rules of the statutory in furtherance rule is “a reasonable provision such any Trans-Action 228.) But (Butterfield, supra, 1 Cal.2d at quoting purpose.” with Code of concluding rule 30.7 is not inconsistent reason for that local There is a second required to a court is not Unlike Code section Civil Procedure section 664.6. of Civil section 664.6. Code judgment under Code of Civil Procedure accept stipulated (See judgment. fn. “may” accept stipulated clearly states the court Procedure section 664.6 “ just ante.) to be entered is A ‘court cannot surrender duty to see that the its ” (California Auto. Assn. State one, the matter.’ puppet act as a mere nor is *26 284, P.2d (1990) Cal.Rptr. 788 Superior Bureau v. Court 50 Cal.3d 664 Inter-Ins. [268 Thus, agreements may reject submitted additional reason that trial courts for the 664.6, notary provision is not inconsistent the under Code of Civil Procedure section approval with that statute. 910 Investors, Firmaterr,
Commercial Ltd. v. Inc. 364 Cal.App.4th “ write, (Trans-Action), the on to ‘How- Cal.Rptr.2d majority goes [70 449] ever, if a statute even reflects a implicitly inferentially choice to legislative a a rule of court not deviate from that require particular procedure, ” ante, 896.) at This from procedure.’ (Maj. opn., Trans-Action is quote First, here. has not identified a inapposite Legislature which procedure by are, fact, trial courts are to assure themselves that the on signatures MSA’s Second, those of the does not parties. notary deviate from requirement 664.6; Code section 2550 or Code of Civil Procedure section to the noted, as I contrary, have rule furthers the statutory those purposes statutes for the by mechanism trial court to determine the providing have agreed to written to the court. agreement presented
The thrust of the majority’s is that local rule 30.7 is invalid opinion because it in addition to those statute. imposes requirements by required a rule on this basis is Invalidating solely unprecedented contrary law, and decisional which statutory allow local rules that are not inconsistent with statute. The ramifications for rule of law announced by majority rule, are far The cites two cases for its “in addition to” reaching. majority Hogoboom Court Superior Cal.App.4th 254] and Conae v. (Hogoboom) Conae P.2d Cal.App.2d (Conae). 266] a local rule
Hogoboom involved fees for mediation services. imposed That decided case was on two and traditional grounds: preemption statutory law, that the local fee rule was state interpretation. holding preempted court noted a Hogoboom legislative number of statutes history intent to the field of court fees. evincing legislative Accordingly, occupy court invalidated the local rule because it Hogoboom imposed requirement statute, in addition to state but the was additional beyond requirement fees those authorized statute. at (Hogoboom, supra, Cal.App.4th 656-669.) pp. court also noted that Government Code section Hogoboom (a)(1) a court from local rules which subdivision expressly prohibits enacting “ ” . . . . . . charge (Hogoboom,
impose ‘any upon any legal proceeding.’ traditional statutory Cal.App.4th Employing interpreta- rules, tion court held that Government Code section Hogoboom (a)(1) subdivision the local fee. (Hogoboom, supra, prohibited 669-671.) at pp. does not a blanket of local rules that
Hogoboom support prohibition in addition to statute. impose requirements *27 Conae, an order
Conae did not involve a trial court issued rule. In a local be documents and accompanying that the order cause and directed to show counsel. by who was represented on the opposing party, served personally noted that the (Conae, the court supra, 697.) at On p. appeal, Cal.App.2d Civil Code of by was governed and service method of notice applicable on a service not require personal and that statute did section Procedure the trial held that that portion court the Accordingly, appellate party. the the time of at disregarded was a nullity properly court’s order conclusion, the lan- court, stated at this in arriving The hearing. appellate or add change not may by here—“A court cited the by majority guage An order attempt- by statutory provision. established requirements procedural an extent a is to such a statute add to those prescribed ing requirements (Conae, supra, 697.) at p. and void.” Cal.App.2d nullity statute, it was also in addition to addition made in Conae was not just inconsistent with statute. to show that the order The trial court’s requirement Civil Procedure with Code of be served on the conflicted party cause opposing must service that when a is represented, which party section provided ” “ (Conae, Cal.App.2d the the instead of attorney party.’ ‘upon The Conae court’s statement not . . . add to court at “[a] p. No is overbroad. by statutory provision” established procedural requirements Conae since its for proposition has cited in the 60 years publication court it a statute by adding requirements, that a local rule is invalid if goes beyond Indeed, no case was cited with statute.10 even if the rule is not inconsistent the Conae court as relied language upon by for the overbroad authority ante, 899), at *28 Conae court Henry v. Willett cited merely and 60 Cal.App. Butterfield (Conae, {Henry) P. for supra, comparison purposes. 698] 697.) at Cal.App.2d p. Henry, this court a trial court a reversed order of venue denying change 245, 252.) {Henry,
motion. at supra, The Cal.App. pp. opposing party in the trial court based on several one of which was that the objected grounds, motion had not been calendared on a law and motion regular day designated wrote, a 248.) local rule of court. at This court “As to the by objection {Id. p. to the of the motion on the that it was not made on a hearing ground regular law fixed the rules of the court of day, by Siskiyou County, superior to control or be answer is that the rules of the cannot be invoked courts substituted {Henry, as to supra, statutory provisions procedure.” for 252, added.) at italics rules that control or Clearly, replace Cal.App. p. are inconsistent with statute. But that is not what we have statutory provisions event, Henry here. In a blanket against does not rules any support prohibition statute that are not inconsistent with go beyond by adding requirements statute. in a
When rules of court should be construed manner possible, {Trans-Action, supra, maintains their with consistency statutory requirements. 365.) at I read the as notary p. requirement completely Code section 2550 and Code of Civil Procedure section consistent Family 664.6. Elkins, in theme in the
Our court noted common high appellate “[a] ... is that a local court has advanced the invalidating decisions local rules by and conservation of resources goals efficiency judicial adopting proce statute, dures that deviated from those established by thereby impairing as well as the interest of the countervailing litigants public interests merits, of a on the and controversy afforded access to resolution being justice, Here, (Elkins, added.) a at italics supra, fair Cal.4th proceeding.” p. that common theme is not present.
As the Judicial Council’s Elkins Family Law Task Force11 noted in its final “Statewide law rules do not address areas family many practice, report, and trial have rules and to address thus courts developed procedures Cal., Cts., Admin. Elkins Law Task (Judicial Family Council of Off. gaps.” 2010) 30.) Unless and Force: Final and Recommendations Report (Apr. p. recom- statewide rules to fill these as gaps until the Judicial Council adopts force, the flexibility trial courts should be allowed mended task by (Elkins, supra, 41 suggested establishment of the task force in Elkins. Supreme Court noted, 20.) might fn. The court “Such a task force wish consider pp. Cal.4th at establishing practice statewide rules of proposals adoption for of new rules of law, family from the initiation of an action to procedure expeditious proceedings for fair and (Id. fn. postjudgment motions.” at Code section in Government subdivision
afforded by Legislature with statute are not inconsistent (a) to as as such rules long create local rules force, realize, that “local rules as the task Council rule. I noted or Judicial Final Law Task Force: (Elkins the unwary.” as may serve traps Recommendations, is 30.) But no such trap presented Report an MSA be on signature that a party’s requirement self-represented clerk, as a way before signature or that the acknowledge notarized party have, indeed, what agreed presented to establish the parties court.
B. to Counsel Admonition Right to counsel admonition right I decline to comment on the validity noted, Anna did an alleged As I not assert of local rule 30.7. have component therefore, court; in the of rule the trial conflict this the involving component More to rule on this matter.12 trial court was of the opportunity deprived Therefore, I on on appeal.13 Anna does not this rely theory importantly, of that the to counsel admonition any right requirement conclude complaint 2550, Code of Civil local 30.7 Code section Family rule conflicts with (Browne is Procedure section or Evidence Code section 1123 forfeited. 664.6 704, 716 Cal.Rptr.3d Tehama County 62] Cal.App.4th of forfeited]; Bank America not raised on are Badie v. [points appeal not waives points 784—785 [party 273] raised not with reasoned supported argument].) on appeal points
Moreover, Anna’s failure to even if this is forfeited because of theory not I see we can ground assert it both in the trial court and on do not how appeal, to conflict the counsel admonition right our on the issue of a between opinion the affording rule and the aforementioned statutes without component Code, (See Gov. briefing. an to opportunity provide supplemental based an issue court renders a decision upon an appellate § [before “the court shall briefed to the by any was not or proposed party proceeding, on the matter through to their views present afford the opportunity (italics added)].) supplemental briefing” hand, right agreed have that the no one the trial court This is small matter. On statute, expenditure which considerable admonition inconsistent with case counsel hand, a have On the other
judicial the matter would been avoided. resources this on provided have this ruling finding no the rule and statute would trial conflict between court’s (See insight upon which to mle on the matter. the trial and a better record court with court’s Elkins, arguments pp. [respondent 1365-1369 court’s favor Cal.4th event, any arguments].) Supreme response local rule and the Court’s those court’s weigh issues opportunity in on bypassed. given It should be first trial court should not be related to own local rules. its 13Also, noted, Evidence never Code section as I have Anna has invoked with which local conflicts. Code section as statutes
III. Conclusion I trial agree court appropriately the MSA on the approved ground that it had the authority do so in the interest of justice, notwithstanding the MSA did not strictly with local rule comply 30.7. I disagree majority’s invalidation of local rule 30.7 and concur in all other respects.
A for a petition was rehearing denied November and appellant’s petition review Court was Supreme denied January S214936. notes majority (maj. opn., p. here. As majority fact, conflicts with local Conae only citing in the context of published there is one case Petroleum, Cunningham Cal.App.2d 84 court. In Albermont Ltd. rules of motion, 405], summary judgment day hearing plaintiff’s on the Cal.Rptr. on the set the motion. The trial opposition sought file affidavits and other documents defendant untimely under an they were ground be filed on the court refused to allow them to and directed that granted plaintiff’s motion court. The court unpublished local rule of 87-90.) (Albermont, supra, Cal.App.2d pp. at plaintiff. be entered for the 473c, summary judgment governs which section Observing that Code of Civil Procedure right counteraffidavits to file opposing party’s time limit on the practice, imposed no motion reversed, 90-91), concluding unpublished that the (Albermont, supra, pp. appellate at court (186 Procedure section 437c of Code of Civil provisions “irreconcilable” with the rule was thus, requirements 91) procedural with the “inconsistent and in conflict Cal.App.2d at (id. Conae as one 93). authority for The court cited by statutory provisions” established Thus, concerning a Conae has been cited even in the one case where quoted language. statute, a rule is Conae was cited for proposition a local rule and conflict between The Albemont repeat did not and in with statute. invalid if it is inconsistent conflict addition requirements merely invalid because it contains implication that a rule is Conae’s to statute.