Harassment Temporary Restraining Orders or “TRO’s” are not always easy to obtain.
Understanding the basics may help. Code of Civil Procedure § 527.6(a) provides the statutory ground to obtain a TRO based on harassment and states in part:
(a) A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.
(b) For the purposes of this section, “harassment” is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.
(i) The prevailing party in any action brought under this section may be awarded court costs and attorney’s fees, if any.
The purpose of a prohibitory injunction is to prevent future harm to the applicant by ordering the defendant to refrain from doing a particular act; consequently, injunctive relief lies only to prevent threatened injury and has no application to wrongs that have been completed, and it should neither serve as punishment for past acts, nor be exercised in the absence of any evidence establishing the reasonable probability the acts will be repeated in the future. Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 29 Cal.Rptr.3d 521. The clear and convincing evidence standard applies, which requires a finding of high probability that unlawful harassment exists. Russell v. Douvan (2003) 5 Cal.Rptr.3d 137.
In Nebel v. Sulak (1999) 87 Cal.Rptr.2d 385, an individual who conducted several judgment debtor examinations failed to show by clear and convincing evidence that he had been harassed by a process server who sought to observe the examinations, as would warrant grant of injunction prohibiting process server from coming within specified distance of examiner; injunction encompassed lawful activity by process server, who had legal right to be present during examinations, and nothing indicated that process server engaged in harassing conduct or did anything other than what he was legally entitled to do.
It is important to establish that the conduct amounts to a threat of violence or a course of conduct of alarming, annoying or harassing behavior. The conduct needs to be well documented. Keep in mind the risks, like attorneys fees, that may result from the unsuccessful seeking of a TRO
Courts may limit the number of attorneys who can examine witnesses in trial
Sometimes, there are multiple attorneys representing the same person or multiple parties on the same side, each with their own lawyer. This can pose increased work and effort to the side without multiple lawyers.
Courts have inherent equity, supervisory and administrative powers as well as inherent power to control litigation before them. Cottle v. Superior Court, 3 Cal. App. 4th 1367, 1377 (1992). Inherent powers of the court are “derived from the state Constitution and are not confined by or dependent on statute.” Id.; Walker v. Superior Court, 53 Cal. 3d 256, 267 (1991). California courts have fashioned new forms of procedures when required to deal with the rights of the parties and to manage the caseload of the court. Cottle, supra, 3 Cal. App. 4th at 1377. Thus, for example, a trial court is empowered to exercise its supervisory power in such a manner as to provide for the orderly conduct of the court’s business and to “guard against inept procedures and unnecessary indulgences which would tend to hinder, hamper or delay the conduct and dispatch of its proceedings.” Ellis v. Rshei Corp., 143 Cal. App. 3d 642, 648-49 (1983).
California courts also have broad, discretionary authority to exclude evidence. Cottle, supra, 3 Cal App. 4th at 1379; Evidence Code sections 310 (determination of issues of fact preliminary to the admission of evidence), 320 (the power to regulate the order of proof), 352 (exclusion of prejudicial, confusing and unduly time-consuming evidence) and 402, subdivision (b) (preliminary determination regarding admissibility of evidence); 3 Witkin, Cal. Evidence (3d ed. 1986) section 1701, p. 1667.
Sometimes, there are parties who only have a peripheral involvement in the case. While in many cases, there isn’t anything you can do, it is always worth trying. If you can limit the number of examining attorneys on the other side in any way, that is a help.
Pereira And Van Camp Are The Two Primarily Recognized Formulas For Apportionment And The Pereira Formula Is Preferred
In Beam v. Bank of America (1971) 6 Cal.3d 12, cited by Patrick v. Alacer, the California Supreme Court described the methods of apportionment as follows: “Over the years our courts have evolved two quite distinct, alternative approaches to allocating earnings between separate and community income in such cases. One method of apportionment, first applied in Pereira v. Pereira (1909) 156 Cal. 1, 7 [103 P. 488] and commonly referred to as the Pereira approach, “is to allocate a fair return on the [husband's separate property] investment [as separate income] and to allocate any excess to the community property as arising from the husband’s efforts.” (Estate of Neilson (1962) 57 Cal.2d 733, 740 [].) The alternative apportionment approach, which traces its derivation to Van Camp v. Van Camp (1921) 53 Cal. App. 17, 27-28 [], is “to determine the reasonable value of the husband’s services . . . , allocate that amount as community property, and treat the balance as separate property attributable to the normal earnings of the [separate estate].” Beam v. Bank of America, supra, 6 Cal.3d at 18.
In choosing between these methods courts “. . . have endeavored to adopt that yardstick which is most appropriate and equitable in a particular situation . . . depending on whether the character of the capital investment in the separate property or the personal activity, ability, and capacity of the spouse is the chief contributing factor in the realization of income and profits.” Id. at 18. In Estate of Neilson (1962) 57 Cal.2d 733, 740, the California Supreme Court noted: “The usual method of apportionment is to allocate a fair return on the investment to the separate property and to allocate any excess to the community property as arising from the husband’s efforts. (Citations omitted.) ‘Only when the profits and accruals actually attributable to the separate property are proved to differ from [the usual interest rate for a well-secured investment] . . . is there reason to depart from this system.” Stated otherwise, “[t]he proceeds and increment in value are apportioned entirely to the husband’s separate estate only when they are attributable solely to the natural enhancement of the property (citations omitted) or when the husband expended only minimal effort and the wife introduced no evidence attributing a value to his services.” Id.
What is the difference? Is one better for me than the other? If my spouse or I move out of the house and no longer live together are we “legally separated”?
These questions frequently arise when a person first considers terminating a marriage. Simply stated, here is the main difference between divorce and a legal separation: with a divorce you terminate your status as a married person and the law returns you to the status of a “single” person. As such, you can re-marry if you so desire. With a legal separation, you remain a “married” person, and thus are unable to legally re-marry until one spouse dies or files for a divorce.
While your date of separation for purposes of division of property can be determined by the physical separation of the parties, a “legal separation” requires a Petition to be filed with the court requesting such status, and a Judgment setting out the parties’ agreements and/or court determined rights and obligations. Until a legal separation judgment is entered you and your spouse still have community property rights and obligations.
A legal separation is an alternative to a divorce and is generally sought when the California residence requirements are not met, or where, for religious or other personal reasons, the Petitioner wants to part ways, but does not want to absolutely terminate his or her marital status. In addition to religious beliefs, a frequent reason for a legal separation is to retain eligibility for medical insurance that would be lost if the parties were to divorce. This can be a very important consideration, especially if one of the spouses has a pre-existing condition for which new coverage would not be available or the lack of funds to afford replacement medical coverage.
Like a divorce, a legal separation will conclusively determine and settle the parties’ community property rights, obligations and financial responsibilities. Further, if the parties to the legal separation have minor children, financial and custodial/visitation determinations will also be made. Following a judgment of legal separation, no further community property is acquired and the parties do not owe each other a spousal duty of care and support except as ordered by the court.
The only limitation to entry of a legal separation is that a court may not enter a judgment for a legal separation unless both parties agree and consent to a legal separation (the exception would be if the other party does not respond and the case proceeds by default.) So, if one spouse requests a legal separation, but the other spouse responds with a request for a divorce, the court will not grant the legal separation, but instead ultimately enter a judgment for divorce.
Now, assume you filed for a legal separation, your spouse agreed and a judgment for legal separation is granted. Does this prevent you from seeking a divorce thereafter? No. A final determination of marital rights and obligations, custody determination, and other financial determinations in your legal separation judgment does not prevent you from obtaining a “status” action to dissolve your marriage. The court can grant a judgment for divorce on either party’s Petition for a dissolution of marriage, which will terminate your bonds as husband and wife and return you to the status of a “single” person.
Community property Property held jointly by a husband and wife. In states having a community property system, property acquired by either spouse during the marriage may be deemed to belong to each spouse as an undivided one-half interest. Some property (e.g., gifts to one spouse) may be classified as separate, but in lawsuits over the classification of property the presumption is in favor of the community category. Some jurisdictions extend community property laws to same-sex unions.
That was simple. Next time we will cover the 3 basic steps in a divorce.
A central purpose of discovery is to eliminate unfair surprise at trial. (Davies v. Superior Court, (1984) 36 Cal.3d 291, 299.) Exclusion at trial is appropriate for concealing or otherwise not producing the evidence in discovery that would cause “unfair surprise” at trial. (See Weil & Brown, Cal Prac. Guide: Civ. Proc. Before Trial (TRG 2007), § 8:1508.10; Chronicle Publishing Co. v. Superior Court (1960) 54 Cal. 2d 548, 561) [Emphasis added]
Evidence Code
In this vein, Evidence Code § 352 provides in part:
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will …(b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
In one case, the attorneys for the deponent refused to allow questioning of him by two different attorneys for the same party. They were cited to: “nothing in California law prohibits questioning by two attorneys at a deposition.” Weil & Brown, Cal Prac. Guide: Civ. Proc. Before Trial (TRG 2007), § 8:718.1 citingRockwell Int’l, Inc. v. Pos-A-Traction Industries (9th Cir. 1983) 712 F.2d 1324, 1325. They still refused to allow questioning by the second attorney, who had prepared separately to question on separate and distinct areas (very complicated).
Prejudice & Exclusion of Testimony
Since our client will now be prejudiced significantly by the refusal to answer questions, exclusion of the testimony in its entirety may be appropriate by the Court.
Encountered the curious objection by one adverse attorney. They claimed that “two attorneys for one party cannot split up the duties of questioning a deponent.”
Oh, really? We lets read Rutter on this: “Nothing in California law prohibits questioning by two attorneys at a deposition. [Rockwell Int'l, Inc. v. Pos–A–Traction Industries (9th Cir. 1983) 712 F2d 1324, 1325—applying California law]”
Statements of decision are often sources of confusion for trial attorneys. Governed typically by Code of Civil Procedure Section 632 and 634 (more in particular areas of law, like family law).
Purpose
The purpose is to protect against implied and inferred findings and presumptions. They are designed to allow the trial court to correct its intended decision. They also frame the issues for appeal (if necessary). Last, they facilitate appellate review (again if necessary).
Practical Issues
They are difficult, hotly contested and can take months.
Role of Objections
The failure to bring errors, ambiguities, or other deficiencies in the statement of decision to the attention of the trial court deems such deficiencies WAIVED on appeal. (Marriage of Arceneaux (1990)). Errors of law, however, ARE NOT WAIVED. Challenges based on substantial evidence are also NOT WAIVED for failure to raise them in the objections.
Don’t Confuse “Statement of Reasons”
“Statement of Reasons” are not statements of decision. They are informal documents and explain the Court’s ruling to the litigants. This is different than the SOD, which explains the Trial Court’s reasoning to the Court of Appeal.
There will be more on this very soon. We are working on one as we speak and will have lots to share.
Gregory G. Brown – - Certified Trial Specialist – - gbrown@bc-llp.com
When marital dissolution or legal separation proceedings are initiated, the classification and division of property is typically the most hotly contested issue. Therefore, knowing how property is acquired and maintained prior to and during the course of marriage is critical for a spouse in order to ensure that his or her property rights are protected.
California is known as a community property state. All property acquired during the course of a marriage is presumed community property. All property acquired before marriage or after permanent separation is presumed to be separate property. In addition, all property acquired by gift, bequest, or devise is presumed to be separate property. All rents, income, and profits that were separate property remain separate property. Quasi-Community Property is property acquired by the couple while they were domiciled in another state, which would have been Community Property had they been domiciled in CA.
Divorce Attorney Michele Charbonneau
In general, the community property is subject to both spouses’ premarital debts and all debts incurred by either spouse during the marriage. Each spouse’s separate property is liable for his/her own debts no matter when they are incurred
In order to determine the character of any asset, courts will trace back to the source of funds used to acquire the asset. A mere change in form of an asset does not change its characterization.
In California, the economic community ends upon “permanent separation” which occurs when there is 1) actual physical separation and 2) one spouse has communicated to the other intent not to continue the marital relationship. Property acquired by each spouse after the economic community ends is generally classified as separate property.
This blog is devoted to providing helpful, insightful and practical information and support to those going through divorce, separation, custody, support battles, or other family law issues.
Who we are?
Brown & Charbonneau, LLP is an Irvine, California Divorce Law Firm
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* Child Custody disputes and Support Disputes
* Modifications of Support and Custody Issues
* Division of Marital Property
* Domestic Violence, Restraining Orders
* Uncontested and Amicable Divorces
* Paternity and District Attorney Actions
* Special Needs Children
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