Blumenthal v. Superior Court

• Decision Date: 10 March 2006
• Docket Number: No. G036590.,G036590.
• Citation: 137 Cal.App.4th 672,40 Cal.Rptr.3d 509
• Court: California Court of Appeals Court of Appeals
• Parties: Deborah Brelant BLUMENTHAL, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Edward Blumenthal, Real Party In Interest.

40 Cal.Rptr.3d 509

137 Cal.App.4th 672

Deborah Brelant BLUMENTHAL, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent;

Edward Blumenthal, Real Party In Interest.

No. G036590.

Court of Appeal, Fourth District, Division 3.

March 10, 2006.

Dell'Ario & LeBoeuf, A. Charles Dell'Ario, Jacques LeBoeuf, Oakland; Langston Williams Professional Corporation and Joanne Langston, Orange, for Petitioner.

Law Offices of Patricia J. Grace and Patricia J. Grace for Real Party in Interest.

No appearance for Respondent.

OPINION

SILLS, P.J.

I. SUMMARY

In this writ proceeding we hold that the trial judge abused her discretion in declaring a mistrial in a family law case merely because the parties did not complete the long-cause trial of a dissolution prior to an arbitrary deadline set by the trial judge. (The actual trial, in fact, had consumed less than two court days, and there was only one witness left to call and only a few more hours left to go.¹)

We also hold, since trial was already in progress, that it was "possible" within the meaning of Family Code section 2330.3 for the trial judge, assigned at the time of the trial to a "family law" panel, to have taken the case with her to her subsequent courtroom assignment, and in fact she should have taken it. (As it turned out, her new assignment is literally one courtroom away in the same courthouse and is still denominated a "family law" assignment.) We will therefore grant the petition brought by the wife for a writ of mandate ordering the trial court to vacate the mistrial and set the matter for completion of the trial before this same trial judge.

II. FACTS

Until the beginning of trial in October 2005 the case had proceeded at what can only be described as a leisurely trot. The petition for dissolution was filed more than five years ago, and in the previous century (September 1999). The record in this writ proceeding shows that Judge Nancy A. Pollard was assigned to the case no later than April 2002. The case was considered a "long cause" matter. While the status of marriage was officially dissolved in September 2001, trial of the reserved issues (the hard part of the case) went through a series of continuances: from September 2002 to November 2002 to August 2003 to January 2004 to April 2004 to August 2004 to January 2005 to May 2005² to October 2005 when it finally got going. The court, however, did not begin to take any testimony until October 31, 2005.

The record in this writ proceeding does not reveal why the trial judge granted most of these continuances. It is clear, though, that Judge Pollard continued to preside over the case during the period, and, on the record before us, we presume there was good cause for each continuance. (See Civ.Code, § 3548 [presumption that "The law has been obeyed."].) In any event, at the end of the first day of trial testimony on October 31, the trial judge told the parties that the next date available to hear their case would be November 18. She ordered the parties back, but also stated: "We will finish. I want everybody to think about what their most important questions are because the very last important question is going to be asked and answered at three o'clock."

So that readers can have a better sense of exactly what happened, we will now detail the proceedings of the afternoon of November 18 as they led to the mistrial.

The afternoon session that Friday began with the redirect examination of an expert for the husband (as the nominal "respondent" in the litigation, having put on his case-in-chief last) by the husband's counsel. Then came recross examination of the expert by the wife's counsel, and further redirect from the husband's counsel.

The examination of the expert finished before three o'clock. Wife's counsel asked if she could call her own expert for "one quick question on his bill so we have that in evidence and [then] he [could] leave." Husband's counsel then added that she might "have a couple a questions" for that expert too. But then husband's counsel told the court that she didn't want the wife's expert "calling him back again to ask him one or two more questions when we get to [husband's] case by asking whatever questions we have now."

At that moment, apparently about 2:50 p.m. in the afternoon, the trial judge interjected: "I'm concerned that this case has gone way beyond the time allotted, way beyond. We're going to finish at three o'clock or I'm going to mistry this case."

Husband's counsel protested. She had more evidence: "Your honor, my client needs an opportunity to testify and has not been provided with an opportunity to provide his testimony and that isn't going to happen in 10 minutes." And after the judge said, "all right," husband's counsel added, "It's going to take probably several hours."

The court was firm: "Well, then, this case is going to be mistried."

Wife's counsel then offered to simply have the evidence of her expert's bill made a matter of stipulation based on his written statement.

Husband's counsel, however, felt that her client was being prejudiced in the total time allocation: "Not that I'm looking certainly for a mistrial—I don't see how that is going to cure the fact that petitioner [wife] has been given a fair amount of time to try this case, and so far we've been given some time, but not as much time, and my client doesn't get to testify? He needs to testify and put on his part of the case."

The judge immediately returned to the theme that the whole case had simply been going on too long. "Counsel, how long have we been going on this case?"

Wife's counsel replied in one word. "Forever."

The judge responded: "Forever. And I cannot see that it's going [to] get finished today."

Wife's counsel quickly made the point that it would be real disservice to her client if the case were mistried, and argued that the delays were due to the husband's "antics." She argued in that regard that the husband had tried to delay the case "again this morning by bringing in another new report that I have never seen. If we mistry this thing, this is exactly what he wants" since that would leave the wife "depleted."

The court then inquired about the existence of a support order. There was one—$2,500 a month, $625 being spousal— and the husband's counsel quickly protested that "there is certainly blame to go around on the [wife's] side.... It's not fair to point fingers."

The trial judge immediately shifted the focus of the discussion to her own calendar: "Ms. Grace, Ms. Langston, let me tell you both[³] this court is leaving department L64 at the end of the year. There is not another day this year that this case can be heard. I was supposed to go to a seminar today. I cancelled my appearance at that seminar so we can get this case finished. We have not gotten it finished. We have spent more time on $101,165 than is worth $101,165. [¶] All I can say to you is it's not going to get finished. I'm not taking it to department L63 for my domestic violence calendar. I have no other choice. I have no other choice."

After ascertaining that husband's counsel still had a couple of hours still to go [after all, husband had yet to testify], the judge reiterated the facts that there wasn't enough time—"I don't have a couple of hours this year ...." and she had given up a seminar to do the case that day. The judge finished by expressing the thought that perhaps a stipulation might have avoided the time crunch. "Why there could not have been a stipulation, I don't have the foggiest, but what I am saying to you is it is not going to get finished. We can't get there. There isn't enough time. Period. I have no other alternative."

In desperation, wife's counsel offered to submit the case then and there, to which the husband's counsel retorted that it would be "grossly unfair" to do that, given that the "majority" of the time had been consumed with the wife's case.

The trial judge (apparently speaking to the husband's counsel, though perhaps to both) then pointed out that she had been liberal with the "inordinate amount of objections and I let you go with your objections," but came back to the determination to end at three o'clock: "I am telling you, there is no—there is not two to three hours left. We have seven minutes. That is it. That is it.... [¶] So I have to declare a mistrial."

Wife's counsel again protested that husband's counsel had taken an inordinate amount of time to cross-examine her expert and her client and reiterated her theme that husband really wanted the case "delayed so he can start all over in front of a new judicial officer and get a second bite out of the apple."

At this point the discussion turned to the degree that each side's experts might have cooperated with each other, but after husband's counsel finished by returning to her theme that it was unfair to give the wife more total time, the court ended the discussion with "The court has mistried this case. That is the court's ruling. There is no time to finish."

Wife's counsel then brought this writ proceeding seeking an order commanding the trial court to vacate the mistrial and set the matter for further proceedings to conclude the trial.

This court invited the husband, real party in interest, to informally respond. While husband objected to the characterization made in the petition that he had caused or contributed to the mistrial, the husband did not oppose the wife's essential relief of having the mistrial vacated and the case returned to Judge Pollard to conclude the trial.

III. DISCUSSION

A. The Standard of Review

This is one of those cases where an extended analysis of exactly which standard of review applies is warranted.

There is no specific statute governing mistrials in the Code of Civil Procedure, though that Code certainly recognizes that there will be mistrials, and the Code thus makes rules to take them into account. (E.g., Code Civ. Proc., § 583.320, subd. (a)(1) [time requirement to bring...