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LAW & MOTION TENTATIVE RULING – FAMILY LAW Dept. 23
JUDGE BRADFORD J. DEMEO
IN COURTROOM 23
FRIDAY, October 2, 2015 @ 9:30 A.M.
The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact the Judicial Assistant by telephone at (707) 521-6732 by 4:00 p.m., Thursday, October 1, 2015. Any party requesting an appearance must notify all other opposing parties of their intent to appear.
Ohlinger V. Cream SFL-37900
The Request for Order to Change Venue is GRANTED, and this case is ordered transferred to San Joaquin County upon payment of the transfer fees by Petitioner. The court record contains an order dated February 26, 2014, ordering the child to live with Petitioner in San Joaquin County. There is no indication that the child has lived anywhere else since that date. Mother/Petitioner lives in San Joaquin County with the child. Father lives in Calistoga, California. Thus, there are sufficient grounds to change venue to the location of the child’s residence where she has lived continuously for over one year.
Sahay v. Sinha SFL-68401
The Motion to Compel Production of Documents is GRANTED, however, sanctions are DENIED. This court finds that the objection of Respondent was unverified, and therefore the motion to compel responses is timely. CCP 2031.010 is not a notice statute. Once discovery is propounded pursuant to CCP 2031.010, the Responding party has a duty to respond, gather and prepare the items in his possession or control for inspection. A date set too early for production does not invalidate the discovery request and does not eliminate the responding party’s duty to serve a legally sufficient response. A general objection to the discovery that the date set for inspection is too early does not require the propounding party to start over. The discovery rules contemplate and meet and confer to set a new date. If the propounding party notifies the responding party of an amended date in compliance with CCP 2013.010 et seq., then it is incumbent upon the responding party to produce the items for inspection or file a motion to extend time to respond. The discovery act does not confer authority on the responding party to vacate the propounded discovery unilaterally, nor does the Discovery Act do so sua sponte under the facts of this case. The error of setting an inspection date prior to 30 days after propounding the discovery is harmless. It was corrected and a new proper date was set. Respondent is not excused from the legal requirement of a verified response to the discovery. The propounding party is not without some degree of fault for confusion. Due to the propounding party’s mistaken production date, Respondent will not be sanctioned. An errata was served 8 days prior to the original production date providing for a new date more than 30 days after original service of the discovery. Respondent Sinha shall produce the documents requested at the office of attorney Morna Challoner no later than October 15, 2015 for inspection and copying, together with a properly executed response signed under penalty of perjury. Failure to comply with this order may subject Respondent to sanctions, including issue sanctions.
Levy v. Levy SFL- 45806
The Motion to Compel Compliance with Court Order in Judgment is DENIED. All requests for sanctions are DENIED.
The Petitioner argues that the Respondent is in the best position to attest to the accuracy of the Millrite Installations, Inc. dba The Filling Station’s taxes, and she operated the business. Anticipating the argument, the Petitioner contends that the notice of Appeal (filed Dec. 1, 2014), does not preclude this court from ordering the Respondent from complying with the Judgment as there is an independent duty to file tax returns. Further, the Petitioner argues that he is not challenging this court’s judgment insofar as it pertains to the winding-up of Millrite. The Petitioner seeks the order, as discussed above, and an award of attorney fees in the amount of $5,000.
The Respondent opposes, arguing that any enforcement of the judgment is stayed pending appeal, and that the Petitioner has not utilized the proper procedure for enforcement. The Respondent also seeks sanctions.
From the outset the court notes that judgments or orders made or entered under the Family Code are enforceable by the family court by “execution, the appointment of a receiver, or contempt, or by any other order as the court in its discretion determines from time to time to be necessary.” (Fam.C. § 290.) Thus, despite the Respondent’s procedural arguments to the contrary, the Family Code generally confers on the trial court broad discretion to select appropriate enforcement remedies and terms; and, in exercising that discretion, to take the equities of the situation into account. (See Marriage of Dancy (2000) 82 Cal.App.4th 1142, 1154; see also In re Francis (9th Cir. BAP 2014) 505 B.R. 914, 922 [observing that the court's broad discretion under Fam.C. § 290 includes power to enforce judgment party's covenants to pay and hold ex-spouse harmless from debts to third parties].)
The broad discretion conferred by Fam.C. § 290, however, does not empower the trial court to bypass other express statutory requirements and limitations. (See Cal-Western Reconveyance Corp. v. Reed (2007) 152 Cal.App.4th 1308, 1318; County of Santa Clara v. Wilson (2003) 111 Cal.App.4th 1324, 1326-1327.) In that vein, a timely appeal in the underlying case stays trial court proceedings on matters “embraced in” or “affected by” the appealed judgment or order—including its enforcement. (CCP § 916 et seq.; and (CCP § 917.1.)
Here, the Petitioner’s Notice of Appeal triggered an automatic stay which precludes this court from enforcing any order encompassed within the judgment. Except as otherwise provided by statute, perfection of an appeal automatically stays further trial court proceedings. (CCP § 916(a).) All mandatory injunctions are automatically stayed by appeal. Otherwise, the result upon a final adjudication could be a “barren victory” (i.e., a reversal on appeal might be “futile” if the action were already performed.) (See Byington v. Super.Ct. (1939) 14 Cal.2d 68, 70; Paramount Pictures Corp. v. Davis (1964) 228 Cal.App.2d 827, 835; Agricultural Labor Relations Bd. v. Super.Ct. (Sam Andrews' Sons) (1983) 149 Cal.App.3d 709, 716-717.) Essentially, if trial court proceedings on the particular matter would have any impact on the “effectiveness” of the appeal, the proceedings are stayed; otherwise, the proceedings are permitted. ( Varian Med. Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189; Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1173.)
Here, it cannot be reasonably argued that the issues dealing with the winding up of Millrite are not embraced by the judgment and subject to the Petitioner’s notice of appeal. The judgment orders both parties to “cooperate in good faith to draft and file all documents necessary, including tax returns, to terminate Millrite.” (Judgment, 5:25-26.) The Petitioner’s contention that he did not appeal this court’s order re the winding up of Millrite is not supported by the evidence submitted to the court, e.g. a filing with the court of appeal abandoning that issue. The court notes that Petitioner claims that the issue of Millrite is not addressed in the Opening Appellate Brief, but fails to seek judicial notice of that Brief, and failed to provide any legal citation that this court may examine the Appellate Briefs to determine the scope of its remaining jurisdiction.
The Petitioner further argues that the appellate stay does not prevent enforcement of the judgment because the Respondent has an independent duty to file tax returns. While the Respondent may have an independent duty, the Petitioner has provided no citations to controlling legal authority that supports his position. This court is not the IRS or the California FTB. If the Respondent fails to file required tax returns, those agencies are more than capable of compelling compliance.
The court notes that the Parties seem to misunderstand the effect of the appellate stay on their ability to comply with the terms of the judgment. The filing of the notice of appeal wrested jurisdiction away from this court, and invested it in the appellate court until the issuance of the remittitur. Thus, this court cannot order compliance with the judgment; But this does not prevent the Parties from complying with the judgment voluntarily. Indeed, from the court’s perspective it makes good sense to move forward on those issues in the judgment on which the Parties agree, e.g. the necessity of filing tax returns for Millrite.