Selected
Benefits

Superior Court Civil Register

Member Benefits

Calendar of Events

Know Your Judge

Judge Your Judge

Free Judicial Council Interactive Forms

 

 

 



 

●   Volume I Number 4   ●   April 2010  ●    Archives of Past Issues   

 
Message from the Editor

Dear Members, 

We are soliciting articles for our next edition of the Family Law News and Review. Generally the articles run 1,500 words—more or less, but we will consider anything of value to the Family Law Section. We even include a photograph of each writer. If you have not had your 15 minutes of fame, now is the time to secure it with an article in the News and Review.

The eNews—the publication you are now reading—fills the gap between editions of our News and Review. We publish Family Law Section announcements, judicial profiles, hot family law tips—like the one by Shanon K. Quinley in this issue—and case updates.

     Sincerely,

     Peter Walzer, editor of Family Law eNews and Family Law News and Review.  

P.S. Please visit the Inns of Court's Web site at www.innsofcourt.org/Inns/socalfamily   or e-mail our Membership Committee for more information at john@chasonlawoffices.com


In This Issue
       

View All Family Law Events 

 

Garrett C. Dailey, Esq., CFLS, AAML will present Beyond the Basics: Drafting, Defending and Attacking Premarital Agreements in three more locations in Northern California, April 27 through April 29, 2010. Premarital agreements are common in marriages today. This fast-paced, three-hour seminar will discuss what you need to know about drafting enforceable premarital agreements and then explore techniques for attacking and defending them if the marriage breaks down. An in-depth discussion will cover the potential retroactivity of the amendments to Family Code §1612 and §1615 to earlier agreements.
All presentations 6:00 p.m. to 9:30 p.m.
Program qualifies for 3.0 hours of MCLE/Legal Specialization credit.
For more information.

The final presentation of the 2009 Year in Review: A Family Law Update will be a video replay in North Lake Tahoe on May 28-29, 2010. Now in its sixth year, this comprehensive seminar reviews the 2009 cases and 2010 statutes affecting you and your clients.
The program qualifies for 6.0 hours of MCLE/Legal Specialization credit.
For more information.

May 8, 2010: 42nd Annual Family Law Symposium, 6.25 hours of MCLE credit.
See the brochure for more information.

October 2, 2010: Child Custody Colloquium. Glen Schwartz will chair this event. It will be held on Saturday, October 2, 2010, at the Sheraton Delfina in Santa Monica. Please note the date on your calendars.

Harriett Buhai – Upcoming Events

June 3, 2010: 25th Annual Theater Benefit honoring Judge Mitchell Beckloff with the Zephryr Ramsey Award and David Ettinger (from Horvitz and Levy)
with the Harriett Buhai Community Service Award.

Back to Top

 
 

Top 5 Things to Remember When Seeking or Opposing a Motion to Set Aside a Judgment
Shanon K. Quinley, Esq.


1. The Moving Party Must Allege a Proper Basis for Set Aside. A set aside is discretionary pursuant to Code of Civil Procedure § 473(b) on the basis of “mistake, inadvertence, surprise, or excusable neglect.” However, a set aside of a default judgment only is mandatory pursuant to C.C.P. §473(b) when the motion is accompanied by an attorney’s sworn affidavit of fault. In addition, relief may be based on the grounds enumerated in Family Code §2122: actual fraud, perjury, duress, mental incapacity, mistake, or failure to comply with disclosure requirements.

2. The Facts Alleged as Grounds for the Set Aside Must Have Materially Affected the Original Outcome and the Moving Party Must Materially Benefit from the Set Aside. A mere finding of wrongdoing committed by the opposing party is not enough. Before granting a motion for a set aside, the court must find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of relief. F.C. §2121(b).

3. The Motion Must Be Timely. Motions made pursuant to C.C.P. §473(b) must be filed no more than six months after entry of the judgment. Motions made pursuant to F.C. §2120, et seq. must be filed 1) within one year after the date on which the moving party discovered or should have discovered actual fraud, perjury, or the failure to comply with disclosure requirements, 2) within two years after the date of entry of the judgment where duress or mental incapacity is alleged, or 3) within one year after the date of entry of the judgment where mistake is alleged.

4. An Inequitable Judgment Alone Does Not Require a Set Aside. A judgment may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate. F.C. §2123.

5. An Order Granting a Set Aside May Be Limited to Only Certain Provisions of the Judgment, Rather Than a Set Aside of the Entire Judgment. The court shall set aside only those provisions materially affected by the circumstances leading to the court’s decision to grant relief. However, the court has discretion to set aside the entire judgment, if necessary, for equitable considerations. F.C. §2125.

Back to Top

 
Voluntary Settlement Conference

Just when you think it is safe to book that spa appointment or tennis game on the third Wednesday of the month, do not be surprised if some well-meaning bench officer interrupts your plans by assigning one of your cases to the LACBA/SFVBA- sponsored Third Wednesday Voluntary Settlement Conference Program. 

Although it may be one of the best kept secrets of the Los Angeles Superior Court, the VSC program is designed to turn the misfortune of the current budget crisis into an opportunity to settle a case on the path to trial. Each family law department in the county may assign up to two cases each month to this VSC program, which provides three hours of free mediation on the third Wednesday of each month in the private office of an experienced family law attorney serving for that day as a voluntary settlement officer. 

After the first three hours of free mediation, in the event that the entire matter has not be resolved, counsel is encouraged to retain the services of the volunteer mediator to resolve any issues that may remain. The program, which commenced in February, had incredible success in March when the exemplary mediators completely resolved five out of seven assigned cases, and one is still engaged in mediation with the volunteer mediator and expects to settle shortly.  

If you are interested in serving as a voluteer mediator and you have been practicing predominantly in the area of family law for at least the past five years, please contact:
Cari M. Pines
Pines, Laurent & Lauer, LLP 
(818) 505-8900 or cari@pllfamilylaw.com

Back to Top

 

What Am I Reading? 
     by Peter M. Walzer

As a new owner of a Kindle, I am now constantly looking for books to download.  Yes, I have downloaded the hundreds of free and almost free books available to Kindle users—the complete works of Leo Tolstoy, The Charles Dickens Collection, all books by Mark Twain. It is like walking out of your college English class with a stack of books wondering how you will ever have the time to get through them. Now that I am an adult, I realize that I don’t have to read them. Just downloading these books makes me feel erudite.

What am I really reading, you ask? I just finished Playing the Enemy, a book on which the recently released movie Invictus was based. Its author, journalist John Carlin, writes about Nelson Mandela’s calculated, step-by-step approach to win over his enemies—the apartheid regime, the Afrikaner elite, and the Boer populace. Mandela’s approach was tactical and based on reason. He set aside his desire for revenge in order to succeed in his quest to unify South Africa.

Mandela showed extraordinary restraint considering that his enemies kept him in prison for 27 years. His children grew up without him. The time he spent in prison destroyed his marriage. His enemies abused and mistreated him and his people. The story would be unbelievable if it were not documented so carefully.

The author follows Mandela’s strategy of using the game of rugby to win over his Afrikaner adversaries. Mandela takes on the colors of the reviled Springbok team as his own. He uses the Boers’ beloved game as a carrot to lure them into his fold. He risks alienating his own people in his efforts. His method of bringing about South African unity is inspiring and educational.

If Mandela can reconcile the Boers and the ANC, is it possible that in our small world of marriage and divorce, we can’t use a few tricks to heal the seemingly impossible divisions that torment our clients? This book opens up the possibility that we, too, have the ability to make a difference through our experience and the force of our personality—just like Mandela did.

Back to Top

 


This Issue's Case Review

  Hague Abduction Convention Case
by Leslie Ellen Shear
A recent Hague Abduction Convention case out of Mono County illustrates how the defenses to return under the Convention can be stretched to defeat the core purpose and policies of the treaty. Read the entire case review.




Find more case summaries in
LACBA's eBriefs.
To review only Family Law cases, 
first go to
LACBA's eBriefs
and then go to:
Search by Key Word/Subject Area 
and select "Family Law."


Family Law


Trial court may consider parties’ history of domestic violence in making award of temporary spousal support.
     In re Marriage of MacManus - filed February 25, 2010, Fourth District, Div. Three
     Cite as G041248
     Full text

The following new cases are available at the Attorney’s BriefCase Web site at http://www.atybriefcase.com/attys/boc/subject.htm


Student's web site message threatening another student because of his perceived sexual orientation was not protected by CCP 425.16 where lawsuit did not arise out of a statement made in connection with a "public issue."
     D.C. v. R.R. - filed March 15, 2010. 
     10 DJDAR 3907 (3-15-10) (DCA 2), modified 4/8/10; no change in judgment.


Reversible error in failing to appoint director of the regional center for the developmentally disabled to perform competency evaluation on retarded teenager.
     In re L.B. 10 DJDAR 4058 - filed March 16, 2010
     (DCA 3), modified 4/7/10; no change in judgment


Given de minimus error of temporary exclusion of 3 persons from portion of voir dire, temporary closure of proceedings did not violate D's fundamental constitutional right to a public trial.
     People v. Bui 10 DJDAR 5105 - filed March 29, 2010
     (DCA 1), certified for partial publication


Trial court did not err by denying D's motion to suppress the evidence re Yahoo! chat dialogues because the communications were not "confidential communications," and therefore, were not protected by PC 632.
     People v. Nakai 10 DJDAR 5024 - filed April 2, 2010
     (DCA 4)


O not required to additionally qualify as a medical marijuana expert to render a valid opinion that marijuana was possessed for sales simply because D presented some evidence raising a compassionate use defense.
     People v. Dowl 10 DJDAR 5136 - filed April 6, 2010
     (DCA 5), certified for partial publication


Court erred by not instructing that all jurors had to agree on specific act D committed for a guilty finding on one count; no error in instructing with comprehensive unanimity instruction applied to all listed offenses. Trial court did not err by not instructing on the definition of "intoxicating agent" where term has a common meaning based on its ordinary use and does not require further definition by the court.
     People v. Milosavljevic - filed April 6, 2010
     10 DJDAR 5089 (DCA 4), certified for partial publication

Children and the Law
As mother did not show hers was the ••only•• reasonable view, Court deferred to trial court's holding that 9-yr.-old was of sufficient age and maturity under Hague exception for his views against returning to Chile to be considered. Mother's argument that F could not oppose her Hague Convention petition because he was not adjudicated C's father was without merit where she admitted his parentage, and he was named on birth certificate she submitted. Mother did not support her assertion that trial court should have rescinded its order of temporary custody to F and honored her prior Chilean custody order pending determination of her Hague Convention petition.
     Escobar v. Flores - filed April 7, 2010,
     10 DJDAR 5152 (4-7-10) (DCA 3)


Reversible error in failing to appoint director of the regional center for the developmentally disabled to perform competency evaluation on retarded teenager.
     In re L.B. - filed March 16, 2010
     10 DJDAR 4058 (3-16-10) (DCA 3), modified 4/7/10; no change in judgment

W's action to set aside c/s order based on fraud was time-barred where she did not bring it w/in 6 mos. of her discovery of fraud. No abuse of discretion in awarding sanctions where W brought discovery motions re motion barred by her own delay, and unsuccessfully argued H and others were themselves misusing discovery process.
     In re Marriage of Zimmerman - filed April 8, 2010,
     10 DJDAR 5274 (4-8-10) (DCA 2)



PC 1054.9 does not amend Prop. 115, which governs only pretrial discovery and does not prohibit postconviction discovery of the kind that PC 1054.9 provides.
     Evidence Civil and Criminal People v. Super. Ct. (Pearson) - filed April 8, 2010
     10 DJDAR 5260 (4-8-10) (Cal,S.Ct.)

Back to Top


Los Angeles County Bar Association
2009 to 2010 Family Law Section Newsletter
FAMILY LAW SECTION eNEWS
Peter Walzer, Editor


SECTION OFFICERS
Chair
Roberta B. Bennett

Chair-Elect
Debra S. Frank

Vice-Chair 
Robert C. Brandt

Treasurer
Seth D. Kramer

Secretary
Lynette Berg Robe

Immediate Past-Chair
William J. Glucksman

Section Administrator
Gail Coleman

EXECUTIVE COMMITTEE MEMBERS

Andrea Balian
Judy L. Bogen
Ronald F. Brot
Gary Fishbein
David H. Friedman
Raymond R. Goldstein
Christian J. Gordon
Barbara K. Hammers
Paula Kane
David S. Karton
Seth Kramer
Hon. Susan L. Lopez-Giss

Connolly Oyler
Cari M. Pines
Lucia A. Reyes
Claudia N. Ribet
Rachel K. Rothbart
Glen H. Schwartz
Roslyn S. Soudry
Joseph P. Spirito
Jeff M. Sturman
Jon S. Summers
Evan T. Sussman
Sorrell Trope
Heidi S. Tuffias
Charles K. Wake
Peter M. Walzer
David K. Yamamoto

 

SUB-SECTION MEMBERS
Judicial Liaison, Commr. John Chemeleski
Judicial Liaison, Commr. Scott M. Gordon
Judicial Liaison, Hon. Mark A Juhas
Judicial Liaison, Hon. Maren E. Nelson 
Judicial Liaison, Hon. Marjorie S. Steinberg

Liaison, Noel H. Appelbaum, CPA
Liaison, Tracy F. Katz Esq., CPA
Liaison, David Kuroda
Liaison, Margaret A. Little, Ph.D.
Liaison, Mary Lund Ph.D.
Liaison, Susan V. Thrall, LMFT
Barrister Liaison, Kelley Finan
Past Chair, Harold J. Cohn 
Past Chair, James R. Eliaser 
Past Chair, Ira M. Friedman
Past Chair, Dianna J. Gould-Saltman 
Past Chair, Dvorah Markman 
Past Chair, Leonard J. Meyberg Jr.  

 

 


Readers are advised that changes in the law may affect the accuracy of this publication or the functionality of links after the publication date.