Elkins v. Superior Court

• Decision Date: 06 August 2007
• Docket Number: No. S139073.,S139073.
• Citation: 163 P.3d 160,63 Cal.Rptr.3d 483
• Court: California Supreme Court
• Parties: Jeffrey ELKINS, Petitioner, v. The SUPERIOR COURT of Contra Costa County, Respondent; Marilyn Elkins, Real Party in Interest.

163 P.3d 160

63 Cal.Rptr.3d 483

Jeffrey ELKINS, Petitioner, v. The SUPERIOR COURT of Contra Costa County, Respondent Marilyn Elkins, Real Party in Interest.

No. S139073.

Supreme Court of California.

August 6, 2007.

Garrett C. Dailey for Petitioner.

Law Offices of Marjorie G. Fuller, Marjorie G. Fuller, Fullerton, and Shara Beral Witkin, Irvine, 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, Encino; Eisenberg and Hancock and Jon B. Eisenberg, Oakland, for Respondent.

Fancher & Wickland, Paige Leslie Wickland; Harkins & Sargent and Daniel S. Harkins for Real Party in Interest.

Fox and Bank, Ronald S. Granberg, Salinas, Dawn Gray, Grass Valley, Linda Seinturier, Redding, Kathryn Fox, Bakersfield, Brigeda D. Bank; and Stephen Temko, San Diego, for Association of Certified Family Law Specialists as Amicus Curiae upon the request of the Supreme Court.

Lee C. Pearce, Walnut Creek, for the Family Law Section of the Contra Costa County Bar Association as Amicus Curiae upon the request of the Supreme Court.

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 case 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 his exhibits, petitioner rested his case. As the court observed, the trial proceeded "quasi by default," and the court's disposition of the parties' property claims demonstrated that the court divided the marital property substantially in the manner requested by petitioner's former spouse.

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 Evidence Code and the Code of Civil Procedure. Respondent court counters that the promulgation of the rule and order comes within its power to govern the proceedings before it, and that its rule and order are consistent with constitutional and statutory provisions.

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 case load 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 Evidence Code.

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, 745-745, 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 case loads 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).)

A trial scheduling order (TSO or order) imposed additional restrictions and sanctions. Like the rule, it ordered that all direct testimony at trial be presented prior to trial in the form of declarations "filed in lieu of oral direct testimony, subject to cross-examination." Indeed, even if a party's witness refused to sign a declaration, the party was required to file an unsigned declaration.

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 noncomplying 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)...