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Contra costa county superior court family law

Filed 8/6/07 IN THE SUPREME COURT OF CALIFORNIA JEFFREY ELKINS, Petitioner, S139073 v. 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. 1/1 A111923 THE SUPERIOR COURT OF CONTRA COSTA COUNTY, ) Respondent; Contra Costa County Super. 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. MSD01-05226 MARILYN ELKINS, ) Real Party in Interest. 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 1 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 1 Our conclusion does not affect hearings on motions. 2 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 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 declarations, it permits parties to present live testimony limited to the scope of the material in the declaration (Super. Contra Costa County, Local Rules, rule 12.8 F.1.a), italics added). The rule also provides that “[a]ny required evidentiary foundation (including stipulations) for admission of the proposed exhibits shall be completely set forth in the declaration(s), as 246, 253, fn. 4.) 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. 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. 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.” (.) 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.” (., 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, 4 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 .” (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 non-complying 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. 5 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) the characterization and division of a multimillion-dollar litigation settlement awarded to Jeffrey’s business; (4) the amount of Jeffrey’s income from specified sources; (5) the characterization and division of assets withdrawn by Jeffrey from community accounts; (6) division of a retirement account held in Marilyn’s name; (7) the status of certain property declared to be the separate property of Marilyn; (8) division of the contents of a joint safe deposit box; and (9) Marilyn’s attorney fees. The issue of child support was reserved, and the parties waived spousal support. Counsel for Marilyn objected to all but two of Jeffrey’s exhibits because, contrary to the TSO, Jeffrey’s declaration failed to refer to the exhibits or offer a basis for their admission into evidence. The court had not received its copy of Jeffrey’s declaration or exhibits when trial began, forcing it to review Jeffrey’s copy on the bench. Marilyn’s counsel announced he would not cross-examine Jeffrey if the court sustained counsel’s objection to Jeffrey’s exhibits, and asserted that Jeffrey therefore was “not entitled to offer any further evidence.” When Jeffrey explained that the procedure he had followed was the same he had engaged in at the trial of the bifurcated issue of the date of separation, the court admonished Jeffrey that he had misunderstood the objection raised by Marilyn’s counsel. it says that the evidentiary basis and foundation for each exhibit must be set forth in the declaration so the other side can object to see, you know, if exhibits have an evidentiary basis or not. The court explained: “In order to get a document admitted into evidence under the trial scheduling order . And [Marilyn’s counsel is] saying that those exhibits don’t have any foundation in your 6 .” (Italics added.) The court provided a “typical example of what I’m talking about with foundation,” noting that Jeffrey’s proposed exhibit No. 5 was not referred to in Jeffrey’s declaration, “[s]o there’s no way of knowing what this document is ].” (Italics added.) Jeffrey attempted to explain that his exhibit No. 5 “refers to an accounting given to my wife — given by my wife to me, and this document is in relation to that.” The court responded: “I understand that. Tentatively, I am going to rule in favor of [Marilyn]. I’m going to allow you at one of the breaks that we have so as not to disrupt the flow right now to rethink your argument and give me the specific evidentiary foundations for these documents, but . There’s a general reference to a general category.” (Italics added.) Jeffrey responded: “Your Honor, there are no specific references in any document.” The court, after asking Jeffrey not to interrupt, continued: “There’s a general reference, and under that general category, arguably, every document that’s ever been filed in this case would be generally referred to, but are the specific evidentiary foundations so that I can rule on them. [¶] There being no evidentiary support for [Jeffrey’s exhibits] with the exception of Exhibit 3 and 12 [to which counsel for Marilyn had not objected because the foundation for the evidence appeared in Jeffrey’s declaration], the objections will be sustained tentatively subject to further argument after the morning break.” (Italics added.) No such break ensued. 7 Marilyn’s declaration and exhibits were admitted into evidence, and she rested her case. Counsel for Marilyn objected to any consideration of the proposed order filed by Jeffrey because the filing of that document was untimely under the TSO. The court stated its understanding, based upon Jeffrey’s declaration, that Jeffrey did not wish to cross-examine Marilyn and that he consented to a dissolution of the marriage. The court confirmed that Jeffrey had withdrawn his request to cross-examine Marilyn, and Jeffrey added that he also wished to withdraw his request to cross-examine expert witness Eggers. The court stated: “Well, before you rest, I’m assuming you would like to admit into evidence your declaration,” but Jeffrey stated he did not wish to do so. Accordingly, Jeffrey’s declaration was not admitted into evidence. in order to insure the orderly administration of justice. 967-968), and the outer limits of such authority are clear.4 A trial court is without authority to adopt local rules or procedures that conflict with statutes or with rules of court adopted by the Judicial Council, or that are inconsistent with the Constitution or case law. 87-88.) 4 In speaking of the limits of a trial court’s authority, we note that constitutional issues concerning separation of powers between the judicial branch and the legislative branch are not involved in the present case. Without providing the anticipated “morning break,” the court invited closing argument. Marital status was terminated, and additional issues were reserved for future trial. That inherent power entitles trial courts to exercise reasonable control over all proceedings connected with pending litigation . (See, e.g., In sum, local courts may not create their own rules of evidence and procedure in conflict with statewide statutes. Although observing that the trial was proceeding “quasi by default, so to speak,” the court stated that both parties still should address the subjects of “the furniture lists” and the contents of the safe deposit box. The court asked the parties to decide by the end of the week whether to submit a settlement agreement (presumably reflecting Jeffrey’s last-minute waiver of any interest in the community property) or instead to ask the court to rule upon the proposed orders that were submitted to the court prior to trial. Reviewing courts have not hesitated to strike down local court rules or policies on the ground they are inconsistent with statute, with California Rules of Court promulgated by the Judicial Council, or with case law or constitutional law. Counsel for Marilyn responded that those issues had been settled by stipulation prior to trial. Apparently the parties selected the latter option; on October 3, 2005, the court filed a final disposition of the property issues still reflecting Jeffrey’s half-interest in the family home. Appellate decisions have invalidated local rules or restricted their application in many areas of affected litigation, including dissolution actions,5 litigation under the Trial Court Delay Reduction Act (Gov. Jeffrey confirmed the stipulations and further offered to relinquish his interest in the family home and in his automobile. The order noted the parties’ stipulation concerning child custody and visitation and the court’s reservation of jurisdiction over the matter of child support. Code § 68600 et seq.) (fast track litigation),6 complex litigation (Cal. The court responded that Jeffrey’s offer was too drastic and that the court would permit him to reconsider, stating that the court would “render a decision along the lines of [counsel for Marilyn’s] proposed order after trial, despite your request here, because that was not what was before me to be tried today. .” Jeffrey responded that he was not referring to the proposed order he had submitted prior to trial. So I might as well give up my position and leave it to the best well-being of my family.” (Italics added.) The court responded that Jeffrey would be well advised to secure legal counsel, and that the exclusion of Jeffrey’s exhibits would not lead to an order depriving him of his interest in the family home, referring again to the proposed order submitted prior to trial by Marilyn’s counsel. By further stipulation, the parties waived spousal support, and the court’s jurisdiction over that issue was terminated. Rules of Court, rule 3.400 et seq.),7 and general civil litigation.8 We also have disapproved rules and procedures adopted 5 In (1983) 140 Cal. And so the tenor of what you’ve just said is in contrast to the declaration that you submitted to me that I prepped on, your trial brief . Jeffrey responded: “Your Honor, if you take a spreadsheet and you add up and deduct everything that [counsel for Marilyn] is asking for, I am left with nothing. The community interest in Marilyn’s retirement account was divided, and the court resolved the additional property issues identified in Marilyn’s declaration in a manner substantially reflecting the order proposed by Marilyn. well established that courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them. App.3d 473, 481, the reviewing court held that a local rule denied due process of law in purporting to permit a custody mediator to make a written recommendation to the court without providing a factual basis and without facing cross-examination. App.4th 1131, 1135-1136 (local rule improperly required parties to “meet and confer” prior to filing motion for new trial; sanctions for violation of local rule were inconsistent with statutory procedure); (1994) 8 Cal.4th 950, 963.) A common theme in the appellate decisions invalidating local rules, and one that also appears in the present case, is that a local court has advanced the goals of efficiency and conservation of judicial resources by adopting procedures that deviated from those established by statute, thereby impairing the countervailing interests of litigants as well as the interest of the public in being afforded access to justice, resolution of a controversy on the merits, and a fair proceeding. App.4th 1309, for example, a local court rule governing family law proceedings required the parties to file a timely request that the court review the case file prior to a hearing on a contested matter. Jeffrey filed a petition for writ of mandate or prohibition in the Court of Appeal. In order to avoid obvious constitutional issues, the reviewing court refused to endorse the trial court’s view that the local rule relieved the court of the obligation to read the case file (1988) 206 Cal. He asserted that there was no statutory authority for the local rule and 9 order preventing the parties from presenting the direct examination of witnesses and requiring the evidentiary foundation for proposed exhibits to be established in a declaration filed well in advance of trial. App.3d 918, 922-923 (invalidating local rule requiring “extensive” or “complicated” motions for summary judgment to be specially set under notice period shorter than that established by statute); cannot jeopardize the constitutional integrity of the judicial process [citation]. He further argued that the local rule and order established a system of “trial by declaration” that violated due process principles and placed an “unreasonable burden” on litigants. In other words, court congestion and ‘the press of business’ will not justify depriving parties of fundamental rights and a full and fair opportunity to present all competent and material evidence relevant to the matter to be adjudicated.” (), involving fast track litigation. Code § 68600 et seq.) We concluded a trial court was without authority to dismiss an action for failure to comply with local fast track rules, because such a dismissal contravened a statute establishing that sanctions for failure to comply with these rules should fall on counsel, and not on the party, if counsel was responsible for the failure to comply. 471.) We rejected the trial court’s argument that such power to dismiss was essential to serve the goal of reducing delay in litigation. Jeffrey’s petition also contended that the sanctions established by the rule and order were inconsistent with the policy favoring trial on the merits, and that their enforcement by the trial court constituted an abuse of discretion requiring reversal of the judgment that resolved the parties’ community property dispute. We subsequently granted petitioner’s petition for review and ordered the Contra Costa County Superior Court to show cause why the challenged local rule and trial scheduling order should not be deemed invalid for the reasons stated in the petition for writ of mandate or prohibition.3 Prior to hearing oral argument, this court requested and received briefing on the question whether the local rules and order conflicted with the hearsay rule. Code, § 1200.) 3 Thereafter, we invited and received amicus curiae briefs from the Family Law Section of the Contra Costa Bar Association, the California Association of Certified Family Law Specialists, and the Northern and Southern California Chapters of the American Academy of Matrimonial Lawyers, who were joined in their brief in support of petitioner by the Los Angeles County Bar Association, the Los Angeles County Bar Association Family Law Section, the Orange County Bar Association, the Honorable Donald B. Rutter, Judge of the Orange County Superior Court (Retired), and the Honorable Richard Denner, Judge of the Los Angeles County Superior Court (Retired). We pointed out that the Trial Court Delay Reduction Act did not elevate delay reduction over the right of a litigant to present his or her case to the court, nor was delay reduction favored over deciding cases on the merits. King, Justice of the First District Court of Appeal (Retired), the Honorable Sheila Prell Sonenshine, Justice of the Fourth District Court of Appeal (Retired), the Honorable J. “ ‘Cases filed in California’s trial courts should be resolved as expeditiously as possible, (1998) 65 Cal. App.4th 341, 342 (disapproving a local court policy discouraging the filing of motions for summary judgment because, according to the local courts, the statutory procedure was “unduly time consuming”); (1998) 64 Cal. 745-746.) The rule and order that were applied in the present case called for the admission of declarations in lieu of direct testimony at trial. App.4th 1506, 1532 (trial court’s policy of referring summary judgment motions to a referee did not comport with statute; “ ‘[e]fficiency is not more important than preserving the constitutional integrity of the judicial process’ ”); see also (1998) 66 Cal. Practice Guide: Family Law (The Rutter Group 2007), ¶¶ , , pp. It is well established, however, that declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions, unless the parties stipulate to the admission of the 15 (1968) 265 Cal. App.4th 257, 265 (trial court erred in declining to hear oral argument on a motion for summary judgment; reviewing court urged trial courts not to “elevate judicial expediency over [a statutory] mandate”). 479-480.) B Although some informality and flexibility have been accepted in marital dissolution proceedings, such proceedings are governed by the same statutory rules of evidence and procedure that apply in other civil actions (with exceptions inapplicable to the present case). apply to, and constitute the rules of practice and procedure in, proceedings under [the Family Code].” (Fam. 13-22-13.23; Samuels & Mandabach, Practice Under the Cal. App.2d 796, 805.) The law provides specific exceptions to the general rule excluding hearsay evidence (see, e.g., Evid. The Family Code establishes as the law of the state — and superior courts are without authority to adopt rules that deviate from this law — that except as otherwise provided by statute or rule adopted by the Judicial Council, “the rules of practice and procedure applicable to civil actions generally . Code, § 210; ); see also 11 Witkin, Summary of Cal. Code, § 1220 et seq.), including those governing the admission of affidavits or declarations. For example, in the marital dissolution context, Family Code section 2336 requires various items of proof of fact to be submitted to the court in support of a . On the contrary, the existence of a specific statutory exception for default judgments, where an adversary proceeding is waived or forfeited, only serves to support the general rule that hearsay declarations are inadmissible at contested marital dissolution trials. Another statutory exception to the hearsay rule permits courts to rely upon affidavits in certain motion matters. Proc, § 2009.)10 Although affidavits or declarations are authorized in certain matters under Code of 10 Code of Civil Procedure section 2009 provides: “An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or , 141 Cal. 554, Code of Civil Procedure section 2009 “has no application to the proof of facts which are directly in controversy in an action. It was not intended to have the effect of changing the general rules of evidence by substituting voluntary affidavits for the testimony of witnesses. of Traynor, J.) [“The fact that section 2009 permits [the admission of affidavits] ‘upon a motion’ does not mean that the issues in a contested case may be determined and a judgment rendered on the basis of written statements of parties not before the court”]; Hogoboom & King, Cal. The section only applies to matters of procedure — matters collateral, ancillary, or incidental to an action or proceeding — and has no relation to proof of facts the existence of which are made issues in the case, and which it is , 23 Cal.2d at p. Practice Guide: Family Law, in marital dissolution matters solely on the basis of affidavits. The reviewing court acknowledged that affidavits ordinarily are excluded as hearsay, but concluded Code of Civil Procedure section 2009 provides a hearsay exception that grants a trial court discretion to decide A recent decision by this court demonstrates the limited application of Code of Civil Procedure section 2009, and also illuminates the policy underlying application of the hearsay rule when questions of credibility arise, as they certainly do in dissolution trials. (, we concluded that at a pretrial hearing on a motion to suppress evidence in a criminal case (Pen. Code, § 1538.5), the prosecution cannot carry its burden by submitting affidavits in lieu of live testimony. [W]ith a scripted statement, prepared and agreed to by one party in advance, comes the passage of time and with that lapse may come the party’s unyielding acceptance of the script. The pertinent statute, Penal Code section 1538.5, did not provide for such a procedure, and the historic practice long had been to require oral testimony. Lost to cross-examination is the opponent’s ability to 21 , 131 Cal. 1514, italics omitted.) The historical pattern of a trial as an oral examination of witnesses in the presence of the trier of fact rather than an exchange of written declarations is reflected in Evidence Code section 711, which provides that “[a]t the and subject to the examination of all the parties to the action, if they choose to attend and examine.” (Italics added.) Also in conformity with the historical form of a trial, Evidence Code section 780 directs the trier of fact to evaluate witness credibility by, among other methods, ” as well as his or her “attitude toward the action in which he testifies or toward the giving of testimony.” (Italics added.) Although Code of Civil Procedure section 2002 provides that the testimony of a witness may be taken by affidavit,11 deposition,12 or oral examination, deposition testimony is admissible at trial only as prescribed by certain statutes not at issue in the present case. (, “allowing a prosecutor to oppose a suppression motion with written affidavits in lieu of live testimony would be inconsistent with the trial court’s vital function of assessing the credibility of witnesses.” ( at p. ‘intuition’ ”].) The testimony of witnesses given on examination is afforded significant weight at trial in ascertaining their credibility; cross-examination does not provide the sole evidence relevant to the weight to be accorded their testimony. Moreover, affidavits (a term including declarations made under oath), as explained, constitute hearsay and are inadmissible at trial in the absence of stipulation or lack of objection, or as otherwise provided by law. 731), and the witness’s personal presence and oral testimony is significant because it “ ‘enable[s] the trier of fact to consider the demeanor of the witness in weighing his testimony and judging his credibility.’ ” ( that, unlike a pretrial suppression motion, the motions referred to in Code of Civil Procedure section 2009 are on “preliminary or ancillary procedural matters” that historically have been decided on the basis of affidavits alone, whereas it is well settled that section 2009 does not change the rules of evidence. 730, italics added.) We conclude that respondent’s rule and order are inconsistent with the hearsay rule to the extent they render written declarations admissible as a basis for decision in a contested marital dissolution trial. , and highly commend his efforts to expedite the handling of matters which come before him. To this end a trial judge should not determine any issue that is presented for his consideration until he has heard all competent, material, and relevant evidence the parties desire to introduce.” ( (1943) 58 Cal. because a great deal of that highly delicate process we call evaluating the credibility of a witness is based on . “In a contested hearing, the precise words and demeanor of a witness during direct as well as cross-examination bears on the credibility and weight the trier of fact accords the witness’s testimony. The only remaining means recognized in Code of Civil Procedure section 2002 for taking the testimony of a witness is . As we shall discuss, our conclusion is consistent with fundamental principles established in other statutes. 28-29, italics added.) Ordinarily, parties have the right to testify in their own behalf ( (1961) 55 Cal.2d 839, 843, 844.) As stated by an appellate court in 1943 with reference to a trial court’s refusal to permit a witness to testify in a marital dissolution matter: “We are fully cognizant of the press of business presented to the judge who presides over the Domestic Relations Department of the Superior Court . However, such efforts should never be directed in such manner as to prevent a full and fair opportunity to the parties to bearing upon any issue properly presented for determination. App.2d 174, 177, italics added.) Oral testimony of witnesses given in the presence of the trier of fact is valued for its probative worth on the issue of credibility, because such testimony affords the trier of fact an opportunity to observe the demeanor of witnesses. App.3d 127, 140-141 [“[O]ne who sees, hears and observes [a witness] may be convinced of his honesty, his integrity, [and] his reliability . Moreover, observation of a witness on direct is important to the planning and execution of effective cross- examination.” ( (1996) 14 Cal.4th 394, 414 [“ ‘it’s pretty difficult to weigh credibility without seeing the witnesses’ ”].) “A prepared, concise statement read by counsel may speed up the hearing, but it is no substitute for the real thing. In a provision that again reflects the historical form of the adversary trial in which live witnesses are 11 An affidavit constitutes a “written declaration under oath, made without notice to the adverse party.” (Code Civ. Proc., § 2005, italics added.)13 In sum, consistent with the traditional concept of a trial as reflected in provisions of the Evidence Code and the Code of Civil Procedure, we conclude that respondent’s rule and order calling for the admission and use of declarations at trial conflict with the hearsay rule. All relevant evidence is admissible, including evidence bearing on the issue of witness credibility (Evid. [¶] Matters of domestic relations are of the utmost importance to the parties involved and also to the people of the State of California. Lost is the opportunity for the trier of fact and counsel to assess the witness’s strengths and weaknesses, recollection, and attempts at evasion or spinning the facts . Proc., § 2003.) 12 A deposition constitutes “a written declaration, under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross- examine.” (Code Civ. C Respondent contends courts have authority to adopt nonstatutory exceptions to the hearsay rule and that prior decisions approve of such exceptions in marital dissolution matters. 731 [“Code of Civil Procedure section 2002 cannot be used to read into every other statutory use of the word ‘testimony’ a license to use affidavits or deposition transcripts for all the same purposes as oral examination”].) Moreover, as petitioner points out, Marilyn’s theory would authorize courts to adopt a system of trial by declaration in . Code, §§ 210, 351), and the oral testimony of witnesses supplies valuable evidence relevant to credibility, a critical issue in many marital dissolution trials. Proc., §§ 2002, 2005.) The conclusion we reach also permits us to avoid the difficult question whether the local rule and order violate petitioner’s right to due process of law, “[m]indful [as we are] of the prudential rule of judicial restraint that counsels against rendering a decision on constitutional grounds if a statutory basis for resolution exists.” ( . 1197.) As noted, evidence bearing on the issue of credibility of witnesses comes within the basic rule that all relevant evidence is admissible, except as specifically provided by statute. Code, §§ 210, 351.) Describing a party’s fundamental right to present evidence at trial in a civil case, Witkin observes: “One of the elements of a fair trial is the restrict cumulative and rebuttal evidence [citation], and to exclude unduly prejudicial matter [citation], denial of this fundamental right is almost always considered reversible error. Cases cited in support of the latter proposition, however (see, e.g., matters in marital dissolution proceedings on the basis of declarations. .” Marilyn reasons that when a declaration is properly sworn, the declarant becomes a witness who “testifies” within the meaning of Code of Civil Procedure section 2002, and at least as long as the declarant is present at the hearing, the declaration does not fall within Evidence Code section 1200’s prohibition on hearsay evidence. Respondent has not offered any persuasive argument in support of its claim that an individual local court may adopt a hearsay exception applicable solely to marital dissolution trials despite state law providing that marital dissolution proceedings are to be conducted in accordance with the ordinary rules governing civil trials, except as specified by statute. Code, § 210.)14 Respondent relies upon this court’s decision in ) for the proposition that courts have discretion not to hold a full evidentiary hearing in contested family law matters. Permitting oral testimony rather than relying upon written declarations also is consistent with the historically and statutorily accepted practice of conducting trial by means of the oral testimony of witnesses given in the presence of the trier of fact. As 13 Marilyn, real party in interest, contends “sworn declarations of witnesses present at the trial and available for cross-examination are not hearsay . Respondent’s reliance is misplaced, as we shall explain. When parties have been unable (privately or through mediation) to agree on custody, “the court shall set the matter for hearing on the unresolved issues.” (Fam. (a).) It is undisputed that such a hearing is an ordinary adversarial proceeding leading to a “final judicial custody determination.” ( — that is, only if the moving party is able to make a prima facie showing that the move will be detrimental to the child or has identified “a material but contested factual issue that should be resolved through 14 The same statutory provision defeats respondent’s claim that English tribunals historically resolved marital dissolution actions in courts of equity, in which declarations assertedly served as the primary basis for factfinding. 24 , the court must hold an evidentiary hearing on the disputed issues, at which the usual rules of evidence apply. Indeed, we explained that a trial court had authority to deny a full evidentiary hearing in , 13 Cal.4th at p. 38.) Nor did we discuss Code of Civil Procedure section 2009 or the hearsay rule in that case.15 Respondent also refers to Evidence Code section 765 as authority to admit hearsay declarations as a means of presenting the testimony of witnesses under direct examination. of Traynor, J.).) Respondent also claims the opportunity for cross-examination satisfies the policy underlying the hearsay rule. That statute provides in pertinent part: “The court shall 15 Respondent also cites (1995) 33 Cal. In that case, the court determined that the informality of family law proceedings had gone too far when disputed factual matters in a district attorney’s child support hearing were determined upon the mere unsworn statements of counsel. 5), the court did not consider Evidence Code section 1200, Code of Civil Procedure section 2009, or Family Code section 210, provisions the court, of course, lacked authority to disregard. [granting courts authority to admit reliable hearsay in the court’s discretion].) Respondent claims that if we conclude that declarations should be excluded as hearsay in contested marital dissolution trials, our decision will overturn settled practice and cause serious disruption. As we have explained, however, in addition to allowing a party to cross-examine adverse witnesses, the hearsay rule assures that the witness will appear in the presence of the trier of fact on direct examination, thereby further aiding it in evaluating the witness’s demeanor and determining his or her credibility. Although the court referred to local rules applicable to family law motions and contested . exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.” (Evid. (a).) This provision never has been interpreted as affording a basis for disregarding the statutory rules of evidence or working a fundamental alteration in the nature of a trial. It does not appear, however, that respondent’s description of settled practice is accurate. Marilyn contends that the distinction between hearings on motions (at which , 39 Cal. Respondent’s argument would prove too much; under its analysis, Code of Civil Procedure section 2009 would be unnecessary, because Evidence Code section 765 (a recodification of former Code of Civil Procedure section 2044, enacted in 1872) would confer authority to conduct any hearing or trial on the basis of affidavit evidence. As is evident from our 26 consultation of treatises and practice manuals, it is well settled that the ordinary rules of evidence apply in marital dissolution trials. [¶] A litigant has a right to present evidence at trial and, although the court can exclude otherwise admissible evidence because it is unduly time-consuming, prejudicial, confusing, or misleading, outright denial of the right to present evidence is error. does not apply to trials.” (Samuels & Mandabach, Practice Under the California Family Code, , § 16.5, pp. App.3d 479 permits the introduction of hearsay evidence) and trials is illusory in the context of marital dissolution proceedings and should not be the basis for our decision in the present case. Respondent contends Evidence Code section 765 should be interpreted to afford trial courts the authority to require declarations in lieu of oral direct examination of witnesses, because assertedly similar language in rule 611(a) of the Federal Rules of Evidence (28 U. C.) has been interpreted to supply such authority to the federal courts. 1992) 965 F.2d 777, 779.) Respondent does not claim, however, that federal procedure includes provisions similar to Code of Civil Procedure section 2009, permitting affidavits in certain types of proceedings not leading to judgment, nor does respondent compare the rules of evidence and procedure we have discussed in the previous section of this opinion with the rules applicable in federal district courts. “The same rules of evidence apply at trial in a marital action as in civil actions generally. [Citations.] The court’s discretion to exclude oral testimony entirely . 745-746.) The same source recognizes that some courts nonetheless attempt to place special restrictions upon the introduction of evidence, noting that “[t]raditionally, trial judges have often regarded trials in marital actions as somehow less important than other civil litigation. As she asserts, in many instances the family court retains jurisdiction over marital dissolution matters for an extended period, responding to repeated motions for interim rulings and for modification of orders. Thus, facts must be established by admissible evidence, and objections must be properly stated and based on the Evidence Code or other applicable statutes or court rules. This attitude has been both recognized and strongly criticized by appellate courts. 152, 154 [provisions governing civil trials apply unless otherwise specified by statute or Judicial Council rule, including the rules of evidence].) Another practice manual explains: “At a contested trial, affidavits are not competent evidence; though made under oath, they are hearsay . Yet we have drawn a distinction between hearings at which a judgment is entered, and hearings on postjudgment motions. A postjudgment motion for modification of a final child custody order, for example, requires the moving party to demonstrate a significant change of circumstances warranting departure from the judgment. 256.) A presumption exists that the judgment is correct and should not be disturbed — a presumption that would not be well founded were the judgment to be based upon hearsay (unless admitted into evidence upon stipulation of the parties). Marilyn fails to support her claim that, for the purpose of the hearsay rule, there is and should be no procedural or substantive distinction between motions and trials in the context of marital dissolution proceedings. 28 D Marilyn claims petitioner forfeited any claim challenging respondent’s rule barring oral examination of witnesses on direct examination, because he did not object on that basis. We do not agree that petitioner forfeited his claim. It should have been evident to the trial court that petitioner’s inability to proceed stemmed both from the local rule precluding direct testimony and the order governing the admissibility of evidence. In any event, even if petitioner failed to preserve his claim with respect to the prohibition on oral examination of witnesses, he certainly objected to the exclusion of nearly all of his evidence for noncompliance with the court’s trial scheduling order. The trial court abused its discretion in sanctioning petitioner by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence. (b)), the preference for trying cases on the merits prevails. App.4th 1242, the reviewing court held that the trial court abused its discretion in refusing, in reliance upon a local fast track rule, to reopen discovery. The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits. generally prefer to avoid acting as automatons and routinely reject requests by counsel to function solely in a ministerial capacity. 28-29, italics added.)16 Even under the fast track statute, a demanding efficiency scheme that does not apply in family law matters (Gov. “Strict adherence to these delay reduction standards has dramatically reduced trial court backlogs and increased the likelihood that matters will be disposed of efficiently, to the benefit of every litigant. Although authorized to impose sanctions for violation of local rules (Code Civ. (a)), courts ordinarily should avoid treating a curable violation of local procedural rules as the basis for crippling a litigant’s ability to present his or her case. App.4th 1152, in the absence of a demonstrated history of litigation abuse “[a]n order based upon a curable procedural defect [including failure to file a statement required by local rule], which effectively results in a judgment against a party, is an abuse of discretion.” ( (1985) 38 Cal.3d 18, in which an attorney failed to file opposition to a motion for summary judgment within the time prescribed by local rules. Rigid rule following is not always consistent with a court’s function to see that justice is done. [Citation.] Here, the trial court’s orders promote judicial efficiency by maintaining strict time deadlines. Delay reduction and calendar management are required for a purpose: to promote the just resolution of cases on their merits. We concluded that the trial court abused its discretion in refusing to consider the tardy opposition. [Citations.] Accordingly, decisions about 16 Terminating sanctions such as an order granting summary judgment based upon procedural error “ ‘have been held to be an abuse of discretion unless the party’s violation of the procedural rule was willful [citations] or, if not willful, at least preceded by a history of abuse of pretrial procedures, or a showing [that] less severe sanctions would not produce compliance with the procedural rule. [Citations.]’ ” ( whether to grant a continuance or extend discovery ‘must be made in an atmosphere of substantial justice. When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.’ ” (, 16 Cal.4th at p. 479), and we see no basis for disregarding the same strong public policy in marital dissolution actions.17 In the present case, the trial court applied the sanction provision of its local rules in a mechanical fashion without considering alternative measures or a lesser sanction, resulting in the exclusion of all but two of petitioner’s 36 exhibits. 481-482.) Under the fast track scheme, had Jeffrey been represented and had his counsel been responsible for making the mistakes attributed to Jeffrey, the trial court would not have been authorized to impose what amounted to issue sanctions affecting the merits of Jeffrey’s case. Had the court permitted petitioner to testify, he could have provided some foundation for his exhibits. 18 Respondent claims its efforts to assist petitioner were rejected, pointing to its offer to allow him to reconsider his position at a break in the court proceedings. In applying the local rule and order mechanically to exclude nearly all of petitioner’s evidence — and proceeding, in the words of the trial court, “quasi by default” — the trial court improperly impaired petitioner’s ability to present his case, thereby prejudicing him and requiring reversal of the judgment.18 17 To demonstrate the harshness of respondent’s application of its rule and order, we recall that under the fast track statutes, the burden of sanctions may not be imposed upon the client if it was the attorney who was responsible for violating the fast track rules. But the court never announced a break, and the record supports our view that at best the court merely offered petitioner an opportunity to demonstrate that his declaration actually III Respondent claims “[f]irst and foremost” that efficiency and the “expeditious resolution of family law cases” support its rule and order. avoid being ‘blindsided’ by the adverse party.” That a procedure is efficient and moves cases through the system is admirable, but even more important is for the courts to provide fair and accessible justice. It also seeks to justify these requirements on the theory that they serve to reduce rancor and “adversarial confrontation between estranged spouses,” and to assist the many self-represented litigants in the family law courts by “giving them direction as to how to prepare for trial, how to frame issues properly, and how to provide evidentiary support for their positions and . In the absence of a legislative decision to create a system by which a judgment may be rendered in a contested marital dissolution case without a trial conducted pursuant to the usual rules of evidence, we do not view respondent’s curtailment of the rights of family law litigants as justified by the goal of efficiency. What was observed three decades ago remains true today: “While the speedy disposition of cases is desirable, speed is not always compatible with justice. Actually, in its use of courtroom time the present judicial process seems to have its priorities confused. Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-the- totem-pole treatment.” ( (1977) 67 Cal. Special care might be taken to accommodate self- represented litigants. 15-28.) I also agree the trial court abused its discretion in excluding petitioner’s exhibits; because the rule and order were inconsistent with state law, enforcing these invalid measures to exclude virtually all of a party’s evidence was necessarily an abuse of discretion. 31.) The trial court excused one breach of the order (petitioner’s late submission of his exhibits) and explained to petitioner the other (failure of petitioner’s declaration to establish the foundation for his exhibits). App.3d 416, 422.) Moreover, the amicus curiae briefs we have received strongly dispute respondent’s assertion that its rule and order promote efficiency, reduce rancor or costs, promote settlement, or aid unrepresented litigants. Proposed rules could be written in a manner easy for laypersons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court. I agree that the superior court’s local rule and trial scheduling order were inconsistent with statutory provisions of the Evidence Code and Code of Civil Procedure, particularly the hearsay rule of Evidence Code section 1200. But given the existence of the local rule and order at the time of trial, I would not conclude that the trial judge acted arbitrarily or unduly “mechanically” in excluding petitioner’s evidence. The court then offered petitioner an opportunity to cure the violation, an opportunity petitioner, for whatever reason, did not pursue. In their brief, the Northern and Southern California Chapters of the American Academy of Matrimonial Lawyers (Academy) argue that the local rule and order only increase 32 the burden on the trial courts and further strain limited judicial resources, because it is more time consuming for the court to examine lengthy declarations than it is to listen to testimony, leaving courts “with two options: (1) spend more time than they have available at court to read the lengthy materials, or (2) just give the written materials a cursory review, and rule by ‘guesstimate.’ This is not a choice favored by litigants, lawyers, or judicial officers.” The same brief characterizes as an “absurdity” respondent’s claim that the rule and order help self-represented litigants by describing in detail how they must prepare for trial. Despite petitioner’s sudden offer to give up his interest in the family home, moreover, the court ordered his interest preserved. The court properly holds the local rule and order invalid because they conflict with state statutes, not because they are poor policy. On the contrary, the brief claims, “[t]he burdens created by the local court rule and [order] are so onerous that they overwhelm most attorneys, let alone self-represented litigants.” According to the Academy’s brief, the rule and order restrict access to justice by increasing the cost of litigation. In my view, the trial court’s rule and order, rather than the particular actions of the court in this case, are to blame for the exclusion of petitioner’s evidence. The criticisms voiced by family law practitioners, although important, would be better considered by the Judicial Council or the Legislature than by this court. Granberg, Dawn Gray, Linda Seinturier, Kathryn Fox, Brigeda D. The brief points to the added costs of preparing exhaustive declarations of all witnesses, including an evidentiary foundation for all proposed exhibits, and taking the deposition of nonparty witnesses in the event they refuse to prepare a declaration. Finally, while I join the majority in recommending that the Judicial Council study ways for trial courts to balance efficiency and fairness in dissolution proceedings (maj. As we have sound statutory grounds for holding the local rule and order invalid, I would leave the weighing of competing policy, at least in the first instance, to other institutions. 2 __________________________________________________________________________________ Unpublished Opinion Original Appeal Original Proceeding XXX Review Granted Rehearing Granted __________________________________________________________________________________ Opinion No. Fuller and Shara Beral Witkin 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. Rutter and Honorable Richard Denner as Amici Curiae on behalf of Petitioner. Fancher & Wickland, Paige Leslie Wickland; Harkins & Sargent and Daniel S. Bank; and Stephen Temko for Association of Certified Family Law Specialists as Amicus Curiae upon the request of the Supreme Court. Pearce for the Family Law Section of the Contra Costa County Bar Association as Amicus Curiae upon the request of the Supreme Court. The Family Law Section of the Contra Costa County Bar Association commissioned a professional survey of family law practitioners in the county, and the great majority of those surveyed were decidedly critical of the rule and order, including the successor to the order at issue in the present case, believing the order did not increase judicial efficiency and, along with their clients, questioning whether courts have the time to read the voluminous binders of declarations and exhibits required by the rule. S139073 Date Filed: August 6, 2007 __________________________________________________________________________________ Court: Superior County: Contra Costa Judge: Barry Baskin __________________________________________________________________________________ Attorneys for Appellant: Garrett C. King, Honorable Sheila Prell Sonenshine, Honorable J. __________________________________________________________________________________ Attorneys for Respondent: Horvitz & Levy, David S. Counsel who argued in Supreme Court (not intended for publication with opinion): Garrett C. A substantial majority of family law attorneys in the county also reported finding the rule and order inordinately time consuming, difficult, and costly to comply with.19 19 The Association of Certified Family Law Specialists (ACFLS) filed a brief generally supporting petitioner’s contentions. Admin., § 10.17, subd.(b)(5)(A) & (B).) We fear that respondent’s rule and order had the opposite effect despite the court’s best intentions.20 20 We recommend to the Judicial Council that it establish a task force, including representatives of the family law bench and bar and the Judicial Council Advisory Committee on Families and the Courts, to study and propose measures to assist trial courts in achieving efficiency and fairness in marital dissolution proceedings and to ensure access to justice for litigants, many of whom are self- represented. Daily 2915 Mc Clure Street Oakland, CA 94609 (510) 465-3920 Jon B. Maddock, Presiding Judge, Contra Costa Superior Court, enclosing a certified copy of the grant order and order to show cause in this court why Contra Costa Suprior Court Local Rule 12.5(b)(3) and the trial scheduling order in the present case should not be declared invalid for the reasons stated in the petition for extraordinary relief in the above-referenced case. The ACFLS’s brief also pointed to Respondent suggests its rule and order encourage settlement by “apprising both sides, well in advance of trial, of the facts that will be presented.” Local attorneys reported, however, that unfortunately the rule and order have not aided settlement, because parties take extreme positions in their declarations, causing an increase in animosity and a diminished likelihood of settlement. Such a task force might wish to consider proposals for adoption of new rules of court establishing statewide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to IV The judgment rendered by the Court of Appeal summarily denying the petition for writ of mandate or prohibition is reversed, and the matter is remanded to that court with directions to issue a writ in terms consistent with this opinion. Eisenberg Eisenberg and Hancock 1970 Broadway, Suite 1200 Oakland, CA 94612 (510) 452-2581 Paige Leslie Wickland Fancher & Wickland 155 Montgomery Street, Suite 1400 San Francisco, CA 94104 (415) 398-4210 from Daniel Severin Harkins, counsel for RPI Marilyn Elkins. Clerk's Office (415) 865-7183, with the original and hard copies to follow. Respondent Superior Court s return is to be filed on or before March 3, 2006. The various amici curiae, including local practitioners, confidently claim that any increase in settlements achieved by the rule and order occur because litigants generally cannot afford the substantial added litigation costs created by compliance with the rules. Opposition to be served upon counsel for petitioner by mail and facsimile (510) 465-7348, and filed in this court by p.m., Friday, December 23, 2005. Counsel notified by telephone; letter to follow by facsimile, with hard copies to follow. The Contra Costa County Superior Court is ordered to show cause in this court why Contra Costa County Local Rule 12.5(b)(3) and the trial scheduling order in the present case should not be declared invalid for the reasons stated in the petition for extraordinary relief. Attention is directed to CRC rule 56(h) for briefing requirements. We are most disturbed by the possible effect the rule and order have had in diminishing litigants’ respect for and trust in the legal system. The return is to be filed on or before March 3, 2006. Form enclosed for certification of interested entities or persons. Dailey enclosing certified copy of the grant order/order to show cause, as well as the certification of interested entitities and persons form. The Contra Costa survey confirmed that litigants believed the rule and order deprived them of the essential opportunity to “tell their story” and “have their day in court,” and felt the rule and order caused the lawyers who drafted the declarations to be the persons testifying, not themselves. 26, italics added.) In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. Attention directed to CRC 56(h) for briefing requirements should he file a reply on behalf of petitioner. “Members uniformly report that their clients are stunned to be told that they will not get to tell their story to the judge,” and express “shock, anxiety and outrage” along with the belief that “they had been denied their specific difficulties caused by respondent’s order and rule. But family law litigants should not be subjected to second-class status or deprived of access to justice. Daniel Harkins, enclosing a certified copy of the grant order/order to show cause, and the certification of interested entities and persons form. “With [respondent’s] imposition of a discovery cut-off before any judicially supervised settlement, a litigant is forced to either forego potentially necessary depositions or [incur] unnecessary expense. on Trust and Confidence in the California Courts (2006) Phase II, pp. will continue to be negatively affected [by] procedures [that] do not permit [litigants] to tell their story at some length and in their own words”].) We are aware that superior courts face a heavy volume of marital dissolution matters, and the case load is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trial proceeding governed by the rules of evidence established by statute. Counsel may elect to file a return separately or may file a return jointly with respondent Superior Court. This creates a larger schism in the ever-widening two-tiered justice system — that for litigants who can afford to opt out of the public court system and retain private judges who do not impose unreasonable and arbitrary deadlines and that for those who cannot afford to do so.” Further, the ACFLS complains that respondent’s deadlines are very difficult to meet. Contra Costa County, Local Rules, rule 12.8 F.1.a) & b), eff. 1, 2007; right to have their case heard by a judicial officer.” Overwhelmingly, practitioners criticized the rule and order for creating what their clients understood to be a lesser standard of justice for family law litigants. 31-36 [self-represented litigants “express[ed] frustration that they did not have a chance to fully explain their side of the story to the judge”; “public trust and confidence in the courts . (See Judicial Council of Cal., Rep on Statewide Action Plan for Serving Self-Represented Litigants (2004) Executive Summary, p. It is at least 35 as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent’s future involvement in his or her child’s life, dividing all of a family’s assets, or determining levels of spousal and child support. Attention is directed to CRC 56(h) for briefing requirements. For example, a party’s notice of intent to call the opposing party as a witness, along with a description of “the testimony the party expects to elicit,” is due the same day the initial declarations are due. A recent statewide survey reflects a similar concern with court procedures that do not permit family law litigants to tell their story, a circumstance reported by litigants to diminish their confidence in the courts. 2 [80% of the cases have at least one unrepresented party by the time of disposition].) In its 2006 report, the Judicial Council estimated that “although family and juvenile cases represent 7.5 percent of total filings, they account for nearly of the trial courts’ judicial workload . The same judicial resources and safeguards should be committed to a family law trial as are committed to other civil proceedings. Admin, § 5.30(c).) As stated in the advisory committee comment to the California Standards for Judicial Administration: “It is only through the constant exertion of pressure to maintain resources and the continuous education of court-related personnel and administrators that the historic trend to give less priority and provide fewer resources to the family court can be changed.” (Advis. On application of Petitioner Jeffrey Elkins and good cause appearing, it is ordered that the time to serve and file his Reply to the Returns of Respondent and and Real Party in Interest is extended to and including May 18, 2006. Fuller dated 4-12-2006, requesting the opportunity to file an amicus curiae brief on behalf of the Southern California Chapter and Northern California Chapters of the American Academy of Matrimonial Lawyers, along with the Family Law Section of the State Bar of California, and the Honorable Sheila Press Soneshine, Jusrtice of the Court of Appeal, Retired, and the Honorable Donald King, Justice of the Court of Appeal, Retired, in support of petitioner, Jeffrey Elkins. Trial courts certainly require resources adequate to enable them to perform their function. NOTE: Telephone call placed to Aty Fuller's Office with a message to comply with California Rules of Court, rule 29.1(f) In the above entitled matter, the court requests the Family Law Section of the Contra Costa County Bar Association and the Association of Certified Family Law Specialists to file amicus curiae briefs addressing the issues presented by the case. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting procedures that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources. The briefs should be filed as set forth in rule 29.1(f) of the California Rules of Court. App.4th 1093, 1107), to the extent they call for the introduction of declarations into evidence at trial in a marital dissolution action? Mailed copies of orders (including the grant order), petition, and answer (letter) to: (1) Mark Stephen Ericsson, President, Contra Costa County Bar Association, 704 Main Street Martinez, CA 94553 (2) Ronald Granberg, President, Association of Certified Family Law Specialists, 15 Corrillo Drive, San Rafael, CA 94903 "Notice of Unavailability of Counsel" from Garrett C. Simultaneous letter briefs are to be served and filed no later than May 11, 2007 and responsive letter briefs may be served and filed no later than May 18, 2005. Dailey, counsel for petitioner (Jeffrey Elkins) Dates: June 12 thru July 11, 2006; August 17 thru August 22, 2006, and December 4 thru December 8, 2006. Oral argument in this case will be divided as follows: 30 minutes for petitioner Jeffrey Elkins, followed by 15 minutes for respondent Superior Court of Contra Costa County, followed by 15 minutes for real party in interest Marilyn Elkins. -- joined by Kennard, Baxter, Chin, Moreno, Corrigan, JJ Concurring Opinion by Werdegar, J. On application of the Amicus Committee of the Family Law Section of the Contra Costa County Bar Association and good cause appearing, it is ordered that the time to serve and file the amicus curiae brief is extended to and including July 17, 2006. Richard Denner, Judge of the Superior Corut (Ret.) On application of Certified Family Law Specialists and good cause appearing, it is ordered that the time to serve and file the amicus curiae brief is extended to and including July 17, 2006. Richard Denner, Judge of the Superior Court (Ret.), in support of Petitioner Jeffrey Elkins. Judgment of the Court of Appeal reversed, and the matter is remanded to that court with directions to issue a writ in terms consistent with this opinion. and brief of Sothern California Cjapter of the American Academy of Matrimonial Lawyers, Northern California Chapter of the American Academy of Matrimonial Lawyers and Los Angeles County Bar Assoc., Hon. [ Application and Amicus Brief received 7-18-2006 (CRC 40.1(b) ] The application of Southern California Chapter of the American Academy of Matrimonial Lawyers, et al., for permission to file an amici curiae brief in support of Petitioner Jeffrey Elkins is granted. On application of Respondent Contra Costa County Superior Court and good cause appearing, it is ordered that the time to serve and file the Respondent's Answer to the Amici Curiae Brief of Southern California Chapter of the American Academy of Matrimonial Lawyers, et al. On application of Real Party in Interest Marilyn Elkins and good cause appearing, it is ordered that the time to serve and file Real Party's Answer to the Amici Curiae Brief of Southern California Chapter of the American Academy of Matrimonial Lawyers, et al., is extended to and including August 7, 2006. Donald King, Justice of the Ciourt of Appear(ret.)Hone. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. Sheila Prell Sonenshine, Justice of the Cour ot Appeal (Ret.), Hon. [ RPI's Answer filed 8-2-2006 ] The application of the Association of Family Law Specialists for permission to file an amicus curiae brief in support of petitioner is hereby granted. Sheila Prell Sonenshine, Justice of the Court of Appeal 9ret.), Hon. Southern California Chapter of the American Academy of Matrimonial Lawyers, Northern California Chapter of the American Academy of Matirmonial Lawyers, and Los Angeles County Bar Association, Los Angeles County Bar Association Family Law Section, Orange County Bar Association, Hon. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. The application of the Family Law Section of the Contra Costa County Bar Association for permission to file an oversized amicus curiae brief with exhibits in excess of ten pages is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. Real Party in Interest's [Marilyn Elkins] Answer to Amicus Curiae Briefs of the Southern California Chapter of the American Academy of Matrimonial Lawyers, et al., The Family Law Section of the Contra Costa County Bar Association and The Association of Certified Family Law Specialists. Respondent's Answer to Amicus Curiae Briefs by (1) the Southern and Northern California Chapters of the American Academy of Matrimonial Lawyers and several local bar associations and retired judges, (2) the Association of Certified Family Law specialists, and (3) the Family Law Section of the Contra Costa County Bar Association. July 1, 2005), the trial scheduling order in the present case, & the court's current local rule (Super. The parties are directed to file simultaneous letter briefs addressing the following question: Are the Contra Costa County Superior Court's prior local rule of court (see Super. Filed 8/6/07 IN THE SUPREME COURT OF CALIFORNIA JEFFREY ELKINS, Petitioner, S139073 v. 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. 1/1 A111923 THE SUPERIOR COURT OF CONTRA COSTA COUNTY, ) Respondent; Contra Costa County Super. 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. MSD01-05226 MARILYN ELKINS, ) Real Party in Interest. 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 1 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 1 Our conclusion does not affect hearings on motions. 2 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 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 declarations, it permits parties to present live testimony limited to the scope of the material in the declaration (Super. Contra Costa County, Local Rules, rule 12.8 F.1.a), italics added). The rule also provides that “[a]ny required evidentiary foundation (including stipulations) for admission of the proposed exhibits shall be completely set forth in the declaration(s), as 246, 253, fn. 4.) 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. 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. 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.” (.) 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.” (., 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, 4 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 .” (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 non-complying 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. 5 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) the characterization and division of a multimillion-dollar litigation settlement awarded to Jeffrey’s business; (4) the amount of Jeffrey’s income from specified sources; (5) the characterization and division of assets withdrawn by Jeffrey from community accounts; (6) division of a retirement account held in Marilyn’s name; (7) the status of certain property declared to be the separate property of Marilyn; (8) division of the contents of a joint safe deposit box; and (9) Marilyn’s attorney fees. The issue of child support was reserved, and the parties waived spousal support. Counsel for Marilyn objected to all but two of Jeffrey’s exhibits because, contrary to the TSO, Jeffrey’s declaration failed to refer to the exhibits or offer a basis for their admission into evidence. The court had not received its copy of Jeffrey’s declaration or exhibits when trial began, forcing it to review Jeffrey’s copy on the bench. Marilyn’s counsel announced he would not cross-examine Jeffrey if the court sustained counsel’s objection to Jeffrey’s exhibits, and asserted that Jeffrey therefore was “not entitled to offer any further evidence.” When Jeffrey explained that the procedure he had followed was the same he had engaged in at the trial of the bifurcated issue of the date of separation, the court admonished Jeffrey that he had misunderstood the objection raised by Marilyn’s counsel. it says that the evidentiary basis and foundation for each exhibit must be set forth in the declaration so the other side can object to see, you know, if exhibits have an evidentiary basis or not. The court explained: “In order to get a document admitted into evidence under the trial scheduling order . And [Marilyn’s counsel is] saying that those exhibits don’t have any foundation in your 6 .” (Italics added.) The court provided a “typical example of what I’m talking about with foundation,” noting that Jeffrey’s proposed exhibit No. 5 was not referred to in Jeffrey’s declaration, “[s]o there’s no way of knowing what this document is ].” (Italics added.) Jeffrey attempted to explain that his exhibit No. 5 “refers to an accounting given to my wife — given by my wife to me, and this document is in relation to that.” The court responded: “I understand that. Tentatively, I am going to rule in favor of [Marilyn]. I’m going to allow you at one of the breaks that we have so as not to disrupt the flow right now to rethink your argument and give me the specific evidentiary foundations for these documents, but . There’s a general reference to a general category.” (Italics added.) Jeffrey responded: “Your Honor, there are no specific references in any document.” The court, after asking Jeffrey not to interrupt, continued: “There’s a general reference, and under that general category, arguably, every document that’s ever been filed in this case would be generally referred to, but are the specific evidentiary foundations so that I can rule on them. [¶] There being no evidentiary support for [Jeffrey’s exhibits] with the exception of Exhibit 3 and 12 [to which counsel for Marilyn had not objected because the foundation for the evidence appeared in Jeffrey’s declaration], the objections will be sustained tentatively subject to further argument after the morning break.” (Italics added.) No such break ensued. 7 Marilyn’s declaration and exhibits were admitted into evidence, and she rested her case. Counsel for Marilyn objected to any consideration of the proposed order filed by Jeffrey because the filing of that document was untimely under the TSO. The court stated its understanding, based upon Jeffrey’s declaration, that Jeffrey did not wish to cross-examine Marilyn and that he consented to a dissolution of the marriage. The court confirmed that Jeffrey had withdrawn his request to cross-examine Marilyn, and Jeffrey added that he also wished to withdraw his request to cross-examine expert witness Eggers. The court stated: “Well, before you rest, I’m assuming you would like to admit into evidence your declaration,” but Jeffrey stated he did not wish to do so. Accordingly, Jeffrey’s declaration was not admitted into evidence. in order to insure the orderly administration of justice. 967-968), and the outer limits of such authority are clear.4 A trial court is without authority to adopt local rules or procedures that conflict with statutes or with rules of court adopted by the Judicial Council, or that are inconsistent with the Constitution or case law. 87-88.) 4 In speaking of the limits of a trial court’s authority, we note that constitutional issues concerning separation of powers between the judicial branch and the legislative branch are not involved in the present case. Without providing the anticipated “morning break,” the court invited closing argument. Marital status was terminated, and additional issues were reserved for future trial. That inherent power entitles trial courts to exercise reasonable control over all proceedings connected with pending litigation . (See, e.g., In sum, local courts may not create their own rules of evidence and procedure in conflict with statewide statutes. Although observing that the trial was proceeding “quasi by default, so to speak,” the court stated that both parties still should address the subjects of “the furniture lists” and the contents of the safe deposit box. The court asked the parties to decide by the end of the week whether to submit a settlement agreement (presumably reflecting Jeffrey’s last-minute waiver of any interest in the community property) or instead to ask the court to rule upon the proposed orders that were submitted to the court prior to trial. Reviewing courts have not hesitated to strike down local court rules or policies on the ground they are inconsistent with statute, with California Rules of Court promulgated by the Judicial Council, or with case law or constitutional law. Counsel for Marilyn responded that those issues had been settled by stipulation prior to trial. Apparently the parties selected the latter option; on October 3, 2005, the court filed a final disposition of the property issues still reflecting Jeffrey’s half-interest in the family home. Appellate decisions have invalidated local rules or restricted their application in many areas of affected litigation, including dissolution actions,5 litigation under the Trial Court Delay Reduction Act (Gov. Jeffrey confirmed the stipulations and further offered to relinquish his interest in the family home and in his automobile. The order noted the parties’ stipulation concerning child custody and visitation and the court’s reservation of jurisdiction over the matter of child support. Code § 68600 et seq.) (fast track litigation),6 complex litigation (Cal. The court responded that Jeffrey’s offer was too drastic and that the court would permit him to reconsider, stating that the court would “render a decision along the lines of [counsel for Marilyn’s] proposed order after trial, despite your request here, because that was not what was before me to be tried today. .” Jeffrey responded that he was not referring to the proposed order he had submitted prior to trial. So I might as well give up my position and leave it to the best well-being of my family.” (Italics added.) The court responded that Jeffrey would be well advised to secure legal counsel, and that the exclusion of Jeffrey’s exhibits would not lead to an order depriving him of his interest in the family home, referring again to the proposed order submitted prior to trial by Marilyn’s counsel. By further stipulation, the parties waived spousal support, and the court’s jurisdiction over that issue was terminated. Rules of Court, rule 3.400 et seq.),7 and general civil litigation.8 We also have disapproved rules and procedures adopted 5 In (1983) 140 Cal. And so the tenor of what you’ve just said is in contrast to the declaration that you submitted to me that I prepped on, your trial brief . Jeffrey responded: “Your Honor, if you take a spreadsheet and you add up and deduct everything that [counsel for Marilyn] is asking for, I am left with nothing. The community interest in Marilyn’s retirement account was divided, and the court resolved the additional property issues identified in Marilyn’s declaration in a manner substantially reflecting the order proposed by Marilyn. well established that courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent power to control litigation before them. App.3d 473, 481, the reviewing court held that a local rule denied due process of law in purporting to permit a custody mediator to make a written recommendation to the court without providing a factual basis and without facing cross-examination. App.4th 1131, 1135-1136 (local rule improperly required parties to “meet and confer” prior to filing motion for new trial; sanctions for violation of local rule were inconsistent with statutory procedure); (1994) 8 Cal.4th 950, 963.) A common theme in the appellate decisions invalidating local rules, and one that also appears in the present case, is that a local court has advanced the goals of efficiency and conservation of judicial resources by adopting procedures that deviated from those established by statute, thereby impairing the countervailing interests of litigants as well as the interest of the public in being afforded access to justice, resolution of a controversy on the merits, and a fair proceeding. App.4th 1309, for example, a local court rule governing family law proceedings required the parties to file a timely request that the court review the case file prior to a hearing on a contested matter. Jeffrey filed a petition for writ of mandate or prohibition in the Court of Appeal. In order to avoid obvious constitutional issues, the reviewing court refused to endorse the trial court’s view that the local rule relieved the court of the obligation to read the case file (1988) 206 Cal. He asserted that there was no statutory authority for the local rule and 9 order preventing the parties from presenting the direct examination of witnesses and requiring the evidentiary foundation for proposed exhibits to be established in a declaration filed well in advance of trial. App.3d 918, 922-923 (invalidating local rule requiring “extensive” or “complicated” motions for summary judgment to be specially set under notice period shorter than that established by statute); cannot jeopardize the constitutional integrity of the judicial process [citation]. He further argued that the local rule and order established a system of “trial by declaration” that violated due process principles and placed an “unreasonable burden” on litigants. In other words, court congestion and ‘the press of business’ will not justify depriving parties of fundamental rights and a full and fair opportunity to present all competent and material evidence relevant to the matter to be adjudicated.” (), involving fast track litigation. Code § 68600 et seq.) We concluded a trial court was without authority to dismiss an action for failure to comply with local fast track rules, because such a dismissal contravened a statute establishing that sanctions for failure to comply with these rules should fall on counsel, and not on the party, if counsel was responsible for the failure to comply. 471.) We rejected the trial court’s argument that such power to dismiss was essential to serve the goal of reducing delay in litigation. Jeffrey’s petition also contended that the sanctions established by the rule and order were inconsistent with the policy favoring trial on the merits, and that their enforcement by the trial court constituted an abuse of discretion requiring reversal of the judgment that resolved the parties’ community property dispute. We subsequently granted petitioner’s petition for review and ordered the Contra Costa County Superior Court to show cause why the challenged local rule and trial scheduling order should not be deemed invalid for the reasons stated in the petition for writ of mandate or prohibition.3 Prior to hearing oral argument, this court requested and received briefing on the question whether the local rules and order conflicted with the hearsay rule. Code, § 1200.) 3 Thereafter, we invited and received amicus curiae briefs from the Family Law Section of the Contra Costa Bar Association, the California Association of Certified Family Law Specialists, and the Northern and Southern California Chapters of the American Academy of Matrimonial Lawyers, who were joined in their brief in support of petitioner by the Los Angeles County Bar Association, the Los Angeles County Bar Association Family Law Section, the Orange County Bar Association, the Honorable Donald B. Rutter, Judge of the Orange County Superior Court (Retired), and the Honorable Richard Denner, Judge of the Los Angeles County Superior Court (Retired). We pointed out that the Trial Court Delay Reduction Act did not elevate delay reduction over the right of a litigant to present his or her case to the court, nor was delay reduction favored over deciding cases on the merits. King, Justice of the First District Court of Appeal (Retired), the Honorable Sheila Prell Sonenshine, Justice of the Fourth District Court of Appeal (Retired), the Honorable J. “ ‘Cases filed in California’s trial courts should be resolved as expeditiously as possible, (1998) 65 Cal. App.4th 341, 342 (disapproving a local court policy discouraging the filing of motions for summary judgment because, according to the local courts, the statutory procedure was “unduly time consuming”); (1998) 64 Cal. 745-746.) The rule and order that were applied in the present case called for the admission of declarations in lieu of direct testimony at trial. App.4th 1506, 1532 (trial court’s policy of referring summary judgment motions to a referee did not comport with statute; “ ‘[e]fficiency is not more important than preserving the constitutional integrity of the judicial process’ ”); see also (1998) 66 Cal. Practice Guide: Family Law (The Rutter Group 2007), ¶¶ , , pp. It is well established, however, that declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions, unless the parties stipulate to the admission of the 15 (1968) 265 Cal. App.4th 257, 265 (trial court erred in declining to hear oral argument on a motion for summary judgment; reviewing court urged trial courts not to “elevate judicial expediency over [a statutory] mandate”). 479-480.) B Although some informality and flexibility have been accepted in marital dissolution proceedings, such proceedings are governed by the same statutory rules of evidence and procedure that apply in other civil actions (with exceptions inapplicable to the present case). apply to, and constitute the rules of practice and procedure in, proceedings under [the Family Code].” (Fam. 13-22-13.23; Samuels & Mandabach, Practice Under the Cal. App.2d 796, 805.) The law provides specific exceptions to the general rule excluding hearsay evidence (see, e.g., Evid. The Family Code establishes as the law of the state — and superior courts are without authority to adopt rules that deviate from this law — that except as otherwise provided by statute or rule adopted by the Judicial Council, “the rules of practice and procedure applicable to civil actions generally . Code, § 210; ); see also 11 Witkin, Summary of Cal. Code, § 1220 et seq.), including those governing the admission of affidavits or declarations. For example, in the marital dissolution context, Family Code section 2336 requires various items of proof of fact to be submitted to the court in support of a . On the contrary, the existence of a specific statutory exception for default judgments, where an adversary proceeding is waived or forfeited, only serves to support the general rule that hearsay declarations are inadmissible at contested marital dissolution trials. Another statutory exception to the hearsay rule permits courts to rely upon affidavits in certain motion matters. Proc, § 2009.)10 Although affidavits or declarations are authorized in certain matters under Code of 10 Code of Civil Procedure section 2009 provides: “An affidavit may be used to verify a pleading or a paper in a special proceeding, to prove the service of a summons, notice, or other paper in an action or special proceeding, to obtain a provisional remedy, the examination of a witness, or a stay of proceedings, and in uncontested proceedings to establish a record of birth, or , 141 Cal. 554, Code of Civil Procedure section 2009 “has no application to the proof of facts which are directly in controversy in an action. It was not intended to have the effect of changing the general rules of evidence by substituting voluntary affidavits for the testimony of witnesses. of Traynor, J.) [“The fact that section 2009 permits [the admission of affidavits] ‘upon a motion’ does not mean that the issues in a contested case may be determined and a judgment rendered on the basis of written statements of parties not before the court”]; Hogoboom & King, Cal. The section only applies to matters of procedure — matters collateral, ancillary, or incidental to an action or proceeding — and has no relation to proof of facts the existence of which are made issues in the case, and which it is , 23 Cal.2d at p. Practice Guide: Family Law, in marital dissolution matters solely on the basis of affidavits. The reviewing court acknowledged that affidavits ordinarily are excluded as hearsay, but concluded Code of Civil Procedure section 2009 provides a hearsay exception that grants a trial court discretion to decide A recent decision by this court demonstrates the limited application of Code of Civil Procedure section 2009, and also illuminates the policy underlying application of the hearsay rule when questions of credibility arise, as they certainly do in dissolution trials. (, we concluded that at a pretrial hearing on a motion to suppress evidence in a criminal case (Pen. Code, § 1538.5), the prosecution cannot carry its burden by submitting affidavits in lieu of live testimony. [W]ith a scripted statement, prepared and agreed to by one party in advance, comes the passage of time and with that lapse may come the party’s unyielding acceptance of the script. The pertinent statute, Penal Code section 1538.5, did not provide for such a procedure, and the historic practice long had been to require oral testimony. Lost to cross-examination is the opponent’s ability to 21 , 131 Cal. 1514, italics omitted.) The historical pattern of a trial as an oral examination of witnesses in the presence of the trier of fact rather than an exchange of written declarations is reflected in Evidence Code section 711, which provides that “[a]t the and subject to the examination of all the parties to the action, if they choose to attend and examine.” (Italics added.) Also in conformity with the historical form of a trial, Evidence Code section 780 directs the trier of fact to evaluate witness credibility by, among other methods, ” as well as his or her “attitude toward the action in which he testifies or toward the giving of testimony.” (Italics added.) Although Code of Civil Procedure section 2002 provides that the testimony of a witness may be taken by affidavit,11 deposition,12 or oral examination, deposition testimony is admissible at trial only as prescribed by certain statutes not at issue in the present case. (, “allowing a prosecutor to oppose a suppression motion with written affidavits in lieu of live testimony would be inconsistent with the trial court’s vital function of assessing the credibility of witnesses.” ( at p. ‘intuition’ ”].) The testimony of witnesses given on examination is afforded significant weight at trial in ascertaining their credibility; cross-examination does not provide the sole evidence relevant to the weight to be accorded their testimony. Moreover, affidavits (a term including declarations made under oath), as explained, constitute hearsay and are inadmissible at trial in the absence of stipulation or lack of objection, or as otherwise provided by law. 731), and the witness’s personal presence and oral testimony is significant because it “ ‘enable[s] the trier of fact to consider the demeanor of the witness in weighing his testimony and judging his credibility.’ ” ( that, unlike a pretrial suppression motion, the motions referred to in Code of Civil Procedure section 2009 are on “preliminary or ancillary procedural matters” that historically have been decided on the basis of affidavits alone, whereas it is well settled that section 2009 does not change the rules of evidence. 730, italics added.) We conclude that respondent’s rule and order are inconsistent with the hearsay rule to the extent they render written declarations admissible as a basis for decision in a contested marital dissolution trial. , and highly commend his efforts to expedite the handling of matters which come before him. To this end a trial judge should not determine any issue that is presented for his consideration until he has heard all competent, material, and relevant evidence the parties desire to introduce.” ( (1943) 58 Cal. because a great deal of that highly delicate process we call evaluating the credibility of a witness is based on . “In a contested hearing, the precise words and demeanor of a witness during direct as well as cross-examination bears on the credibility and weight the trier of fact accords the witness’s testimony. The only remaining means recognized in Code of Civil Procedure section 2002 for taking the testimony of a witness is . As we shall discuss, our conclusion is consistent with fundamental principles established in other statutes. 28-29, italics added.) Ordinarily, parties have the right to testify in their own behalf ( (1961) 55 Cal.2d 839, 843, 844.) As stated by an appellate court in 1943 with reference to a trial court’s refusal to permit a witness to testify in a marital dissolution matter: “We are fully cognizant of the press of business presented to the judge who presides over the Domestic Relations Department of the Superior Court . However, such efforts should never be directed in such manner as to prevent a full and fair opportunity to the parties to bearing upon any issue properly presented for determination. App.2d 174, 177, italics added.) Oral testimony of witnesses given in the presence of the trier of fact is valued for its probative worth on the issue of credibility, because such testimony affords the trier of fact an opportunity to observe the demeanor of witnesses. App.3d 127, 140-141 [“[O]ne who sees, hears and observes [a witness] may be convinced of his honesty, his integrity, [and] his reliability . Moreover, observation of a witness on direct is important to the planning and execution of effective cross- examination.” ( (1996) 14 Cal.4th 394, 414 [“ ‘it’s pretty difficult to weigh credibility without seeing the witnesses’ ”].) “A prepared, concise statement read by counsel may speed up the hearing, but it is no substitute for the real thing. In a provision that again reflects the historical form of the adversary trial in which live witnesses are 11 An affidavit constitutes a “written declaration under oath, made without notice to the adverse party.” (Code Civ. Proc., § 2005, italics added.)13 In sum, consistent with the traditional concept of a trial as reflected in provisions of the Evidence Code and the Code of Civil Procedure, we conclude that respondent’s rule and order calling for the admission and use of declarations at trial conflict with the hearsay rule. All relevant evidence is admissible, including evidence bearing on the issue of witness credibility (Evid. [¶] Matters of domestic relations are of the utmost importance to the parties involved and also to the people of the State of California. Lost is the opportunity for the trier of fact and counsel to assess the witness’s strengths and weaknesses, recollection, and attempts at evasion or spinning the facts . Proc., § 2003.) 12 A deposition constitutes “a written declaration, under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross- examine.” (Code Civ. C Respondent contends courts have authority to adopt nonstatutory exceptions to the hearsay rule and that prior decisions approve of such exceptions in marital dissolution matters. 731 [“Code of Civil Procedure section 2002 cannot be used to read into every other statutory use of the word ‘testimony’ a license to use affidavits or deposition transcripts for all the same purposes as oral examination”].) Moreover, as petitioner points out, Marilyn’s theory would authorize courts to adopt a system of trial by declaration in . Code, §§ 210, 351), and the oral testimony of witnesses supplies valuable evidence relevant to credibility, a critical issue in many marital dissolution trials. Proc., §§ 2002, 2005.) The conclusion we reach also permits us to avoid the difficult question whether the local rule and order violate petitioner’s right to due process of law, “[m]indful [as we are] of the prudential rule of judicial restraint that counsels against rendering a decision on constitutional grounds if a statutory basis for resolution exists.” ( . 1197.) As noted, evidence bearing on the issue of credibility of witnesses comes within the basic rule that all relevant evidence is admissible, except as specifically provided by statute. Code, §§ 210, 351.) Describing a party’s fundamental right to present evidence at trial in a civil case, Witkin observes: “One of the elements of a fair trial is the restrict cumulative and rebuttal evidence [citation], and to exclude unduly prejudicial matter [citation], denial of this fundamental right is almost always considered reversible error. Cases cited in support of the latter proposition, however (see, e.g., matters in marital dissolution proceedings on the basis of declarations. .” Marilyn reasons that when a declaration is properly sworn, the declarant becomes a witness who “testifies” within the meaning of Code of Civil Procedure section 2002, and at least as long as the declarant is present at the hearing, the declaration does not fall within Evidence Code section 1200’s prohibition on hearsay evidence. Respondent has not offered any persuasive argument in support of its claim that an individual local court may adopt a hearsay exception applicable solely to marital dissolution trials despite state law providing that marital dissolution proceedings are to be conducted in accordance with the ordinary rules governing civil trials, except as specified by statute. Code, § 210.)14 Respondent relies upon this court’s decision in ) for the proposition that courts have discretion not to hold a full evidentiary hearing in contested family law matters. Permitting oral testimony rather than relying upon written declarations also is consistent with the historically and statutorily accepted practice of conducting trial by means of the oral testimony of witnesses given in the presence of the trier of fact. As 13 Marilyn, real party in interest, contends “sworn declarations of witnesses present at the trial and available for cross-examination are not hearsay . Respondent’s reliance is misplaced, as we shall explain. When parties have been unable (privately or through mediation) to agree on custody, “the court shall set the matter for hearing on the unresolved issues.” (Fam. (a).) It is undisputed that such a hearing is an ordinary adversarial proceeding leading to a “final judicial custody determination.” ( — that is, only if the moving party is able to make a prima facie showing that the move will be detrimental to the child or has identified “a material but contested factual issue that should be resolved through 14 The same statutory provision defeats respondent’s claim that English tribunals historically resolved marital dissolution actions in courts of equity, in which declarations assertedly served as the primary basis for factfinding. 24 , the court must hold an evidentiary hearing on the disputed issues, at which the usual rules of evidence apply. Indeed, we explained that a trial court had authority to deny a full evidentiary hearing in , 13 Cal.4th at p. 38.) Nor did we discuss Code of Civil Procedure section 2009 or the hearsay rule in that case.15 Respondent also refers to Evidence Code section 765 as authority to admit hearsay declarations as a means of presenting the testimony of witnesses under direct examination. of Traynor, J.).) Respondent also claims the opportunity for cross-examination satisfies the policy underlying the hearsay rule. That statute provides in pertinent part: “The court shall 15 Respondent also cites (1995) 33 Cal. In that case, the court determined that the informality of family law proceedings had gone too far when disputed factual matters in a district attorney’s child support hearing were determined upon the mere unsworn statements of counsel. 5), the court did not consider Evidence Code section 1200, Code of Civil Procedure section 2009, or Family Code section 210, provisions the court, of course, lacked authority to disregard. [granting courts authority to admit reliable hearsay in the court’s discretion].) Respondent claims that if we conclude that declarations should be excluded as hearsay in contested marital dissolution trials, our decision will overturn settled practice and cause serious disruption. As we have explained, however, in addition to allowing a party to cross-examine adverse witnesses, the hearsay rule assures that the witness will appear in the presence of the trier of fact on direct examination, thereby further aiding it in evaluating the witness’s demeanor and determining his or her credibility. Although the court referred to local rules applicable to family law motions and contested . exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be, and to protect the witness from undue harassment or embarrassment.” (Evid. (a).) This provision never has been interpreted as affording a basis for disregarding the statutory rules of evidence or working a fundamental alteration in the nature of a trial. It does not appear, however, that respondent’s description of settled practice is accurate. Marilyn contends that the distinction between hearings on motions (at which , 39 Cal. Respondent’s argument would prove too much; under its analysis, Code of Civil Procedure section 2009 would be unnecessary, because Evidence Code section 765 (a recodification of former Code of Civil Procedure section 2044, enacted in 1872) would confer authority to conduct any hearing or trial on the basis of affidavit evidence. As is evident from our 26 consultation of treatises and practice manuals, it is well settled that the ordinary rules of evidence apply in marital dissolution trials. [¶] A litigant has a right to present evidence at trial and, although the court can exclude otherwise admissible evidence because it is unduly time-consuming, prejudicial, confusing, or misleading, outright denial of the right to present evidence is error. does not apply to trials.” (Samuels & Mandabach, Practice Under the California Family Code, , § 16.5, pp. App.3d 479 permits the introduction of hearsay evidence) and trials is illusory in the context of marital dissolution proceedings and should not be the basis for our decision in the present case. Respondent contends Evidence Code section 765 should be interpreted to afford trial courts the authority to require declarations in lieu of oral direct examination of witnesses, because assertedly similar language in rule 611(a) of the Federal Rules of Evidence (28 U. C.) has been interpreted to supply such authority to the federal courts. 1992) 965 F.2d 777, 779.) Respondent does not claim, however, that federal procedure includes provisions similar to Code of Civil Procedure section 2009, permitting affidavits in certain types of proceedings not leading to judgment, nor does respondent compare the rules of evidence and procedure we have discussed in the previous section of this opinion with the rules applicable in federal district courts. “The same rules of evidence apply at trial in a marital action as in civil actions generally. [Citations.] The court’s discretion to exclude oral testimony entirely . 745-746.) The same source recognizes that some courts nonetheless attempt to place special restrictions upon the introduction of evidence, noting that “[t]raditionally, trial judges have often regarded trials in marital actions as somehow less important than other civil litigation. As she asserts, in many instances the family court retains jurisdiction over marital dissolution matters for an extended period, responding to repeated motions for interim rulings and for modification of orders. Thus, facts must be established by admissible evidence, and objections must be properly stated and based on the Evidence Code or other applicable statutes or court rules. This attitude has been both recognized and strongly criticized by appellate courts. 152, 154 [provisions governing civil trials apply unless otherwise specified by statute or Judicial Council rule, including the rules of evidence].) Another practice manual explains: “At a contested trial, affidavits are not competent evidence; though made under oath, they are hearsay . Yet we have drawn a distinction between hearings at which a judgment is entered, and hearings on postjudgment motions. A postjudgment motion for modification of a final child custody order, for example, requires the moving party to demonstrate a significant change of circumstances warranting departure from the judgment. 256.) A presumption exists that the judgment is correct and should not be disturbed — a presumption that would not be well founded were the judgment to be based upon hearsay (unless admitted into evidence upon stipulation of the parties). Marilyn fails to support her claim that, for the purpose of the hearsay rule, there is and should be no procedural or substantive distinction between motions and trials in the context of marital dissolution proceedings. 28 D Marilyn claims petitioner forfeited any claim challenging respondent’s rule barring oral examination of witnesses on direct examination, because he did not object on that basis. We do not agree that petitioner forfeited his claim. It should have been evident to the trial court that petitioner’s inability to proceed stemmed both from the local rule precluding direct testimony and the order governing the admissibility of evidence. In any event, even if petitioner failed to preserve his claim with respect to the prohibition on oral examination of witnesses, he certainly objected to the exclusion of nearly all of his evidence for noncompliance with the court’s trial scheduling order. The trial court abused its discretion in sanctioning petitioner by excluding the bulk of his evidence simply because he failed, prior to trial, to file a declaration establishing the admissibility of his trial evidence. (b)), the preference for trying cases on the merits prevails. App.4th 1242, the reviewing court held that the trial court abused its discretion in refusing, in reliance upon a local fast track rule, to reopen discovery. The sanction was disproportionate and inconsistent with the policy favoring determination of cases on their merits. generally prefer to avoid acting as automatons and routinely reject requests by counsel to function solely in a ministerial capacity. 28-29, italics added.)16 Even under the fast track statute, a demanding efficiency scheme that does not apply in family law matters (Gov. “Strict adherence to these delay reduction standards has dramatically reduced trial court backlogs and increased the likelihood that matters will be disposed of efficiently, to the benefit of every litigant. Although authorized to impose sanctions for violation of local rules (Code Civ. (a)), courts ordinarily should avoid treating a curable violation of local procedural rules as the basis for crippling a litigant’s ability to present his or her case. App.4th 1152, in the absence of a demonstrated history of litigation abuse “[a]n order based upon a curable procedural defect [including failure to file a statement required by local rule], which effectively results in a judgment against a party, is an abuse of discretion.” ( (1985) 38 Cal.3d 18, in which an attorney failed to file opposition to a motion for summary judgment within the time prescribed by local rules. Rigid rule following is not always consistent with a court’s function to see that justice is done. [Citation.] Here, the trial court’s orders promote judicial efficiency by maintaining strict time deadlines. Delay reduction and calendar management are required for a purpose: to promote the just resolution of cases on their merits. We concluded that the trial court abused its discretion in refusing to consider the tardy opposition. [Citations.] Accordingly, decisions about 16 Terminating sanctions such as an order granting summary judgment based upon procedural error “ ‘have been held to be an abuse of discretion unless the party’s violation of the procedural rule was willful [citations] or, if not willful, at least preceded by a history of abuse of pretrial procedures, or a showing [that] less severe sanctions would not produce compliance with the procedural rule. [Citations.]’ ” ( whether to grant a continuance or extend discovery ‘must be made in an atmosphere of substantial justice. When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.’ ” (, 16 Cal.4th at p. 479), and we see no basis for disregarding the same strong public policy in marital dissolution actions.17 In the present case, the trial court applied the sanction provision of its local rules in a mechanical fashion without considering alternative measures or a lesser sanction, resulting in the exclusion of all but two of petitioner’s 36 exhibits. 481-482.) Under the fast track scheme, had Jeffrey been represented and had his counsel been responsible for making the mistakes attributed to Jeffrey, the trial court would not have been authorized to impose what amounted to issue sanctions affecting the merits of Jeffrey’s case. Had the court permitted petitioner to testify, he could have provided some foundation for his exhibits. 18 Respondent claims its efforts to assist petitioner were rejected, pointing to its offer to allow him to reconsider his position at a break in the court proceedings. In applying the local rule and order mechanically to exclude nearly all of petitioner’s evidence — and proceeding, in the words of the trial court, “quasi by default” — the trial court improperly impaired petitioner’s ability to present his case, thereby prejudicing him and requiring reversal of the judgment.18 17 To demonstrate the harshness of respondent’s application of its rule and order, we recall that under the fast track statutes, the burden of sanctions may not be imposed upon the client if it was the attorney who was responsible for violating the fast track rules. But the court never announced a break, and the record supports our view that at best the court merely offered petitioner an opportunity to demonstrate that his declaration actually III Respondent claims “[f]irst and foremost” that efficiency and the “expeditious resolution of family law cases” support its rule and order. avoid being ‘blindsided’ by the adverse party.” That a procedure is efficient and moves cases through the system is admirable, but even more important is for the courts to provide fair and accessible justice. It also seeks to justify these requirements on the theory that they serve to reduce rancor and “adversarial confrontation between estranged spouses,” and to assist the many self-represented litigants in the family law courts by “giving them direction as to how to prepare for trial, how to frame issues properly, and how to provide evidentiary support for their positions and . In the absence of a legislative decision to create a system by which a judgment may be rendered in a contested marital dissolution case without a trial conducted pursuant to the usual rules of evidence, we do not view respondent’s curtailment of the rights of family law litigants as justified by the goal of efficiency. What was observed three decades ago remains true today: “While the speedy disposition of cases is desirable, speed is not always compatible with justice. Actually, in its use of courtroom time the present judicial process seems to have its priorities confused. Domestic relations litigation, one of the most important and sensitive tasks a judge faces, too often is given the low-man-on-the- totem-pole treatment.” ( (1977) 67 Cal. Special care might be taken to accommodate self- represented litigants. 15-28.) I also agree the trial court abused its discretion in excluding petitioner’s exhibits; because the rule and order were inconsistent with state law, enforcing these invalid measures to exclude virtually all of a party’s evidence was necessarily an abuse of discretion. 31.) The trial court excused one breach of the order (petitioner’s late submission of his exhibits) and explained to petitioner the other (failure of petitioner’s declaration to establish the foundation for his exhibits). App.3d 416, 422.) Moreover, the amicus curiae briefs we have received strongly dispute respondent’s assertion that its rule and order promote efficiency, reduce rancor or costs, promote settlement, or aid unrepresented litigants. Proposed rules could be written in a manner easy for laypersons to follow, be economical to comply with, and ensure that a litigant be afforded a satisfactory opportunity to present his or her case to the court. I agree that the superior court’s local rule and trial scheduling order were inconsistent with statutory provisions of the Evidence Code and Code of Civil Procedure, particularly the hearsay rule of Evidence Code section 1200. But given the existence of the local rule and order at the time of trial, I would not conclude that the trial judge acted arbitrarily or unduly “mechanically” in excluding petitioner’s evidence. The court then offered petitioner an opportunity to cure the violation, an opportunity petitioner, for whatever reason, did not pursue. In their brief, the Northern and Southern California Chapters of the American Academy of Matrimonial Lawyers (Academy) argue that the local rule and order only increase 32 the burden on the trial courts and further strain limited judicial resources, because it is more time consuming for the court to examine lengthy declarations than it is to listen to testimony, leaving courts “with two options: (1) spend more time than they have available at court to read the lengthy materials, or (2) just give the written materials a cursory review, and rule by ‘guesstimate.’ This is not a choice favored by litigants, lawyers, or judicial officers.” The same brief characterizes as an “absurdity” respondent’s claim that the rule and order help self-represented litigants by describing in detail how they must prepare for trial. Despite petitioner’s sudden offer to give up his interest in the family home, moreover, the court ordered his interest preserved. The court properly holds the local rule and order invalid because they conflict with state statutes, not because they are poor policy. On the contrary, the brief claims, “[t]he burdens created by the local court rule and [order] are so onerous that they overwhelm most attorneys, let alone self-represented litigants.” According to the Academy’s brief, the rule and order restrict access to justice by increasing the cost of litigation. In my view, the trial court’s rule and order, rather than the particular actions of the court in this case, are to blame for the exclusion of petitioner’s evidence. The criticisms voiced by family law practitioners, although important, would be better considered by the Judicial Council or the Legislature than by this court. Granberg, Dawn Gray, Linda Seinturier, Kathryn Fox, Brigeda D. The brief points to the added costs of preparing exhaustive declarations of all witnesses, including an evidentiary foundation for all proposed exhibits, and taking the deposition of nonparty witnesses in the event they refuse to prepare a declaration. Finally, while I join the majority in recommending that the Judicial Council study ways for trial courts to balance efficiency and fairness in dissolution proceedings (maj. As we have sound statutory grounds for holding the local rule and order invalid, I would leave the weighing of competing policy, at least in the first instance, to other institutions. 2 __________________________________________________________________________________ Unpublished Opinion Original Appeal Original Proceeding XXX Review Granted Rehearing Granted __________________________________________________________________________________ Opinion No. Fuller and Shara Beral Witkin 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. Rutter and Honorable Richard Denner as Amici Curiae on behalf of Petitioner. Fancher & Wickland, Paige Leslie Wickland; Harkins & Sargent and Daniel S. Bank; and Stephen Temko for Association of Certified Family Law Specialists as Amicus Curiae upon the request of the Supreme Court. Pearce for the Family Law Section of the Contra Costa County Bar Association as Amicus Curiae upon the request of the Supreme Court. The Family Law Section of the Contra Costa County Bar Association commissioned a professional survey of family law practitioners in the county, and the great majority of those surveyed were decidedly critical of the rule and order, including the successor to the order at issue in the present case, believing the order did not increase judicial efficiency and, along with their clients, questioning whether courts have the time to read the voluminous binders of declarations and exhibits required by the rule. S139073 Date Filed: August 6, 2007 __________________________________________________________________________________ Court: Superior County: Contra Costa Judge: Barry Baskin __________________________________________________________________________________ Attorneys for Appellant: Garrett C. King, Honorable Sheila Prell Sonenshine, Honorable J. __________________________________________________________________________________ Attorneys for Respondent: Horvitz & Levy, David S. Counsel who argued in Supreme Court (not intended for publication with opinion): Garrett C. A substantial majority of family law attorneys in the county also reported finding the rule and order inordinately time consuming, difficult, and costly to comply with.19 19 The Association of Certified Family Law Specialists (ACFLS) filed a brief generally supporting petitioner’s contentions. Admin., § 10.17, subd.(b)(5)(A) & (B).) We fear that respondent’s rule and order had the opposite effect despite the court’s best intentions.20 20 We recommend to the Judicial Council that it establish a task force, including representatives of the family law bench and bar and the Judicial Council Advisory Committee on Families and the Courts, to study and propose measures to assist trial courts in achieving efficiency and fairness in marital dissolution proceedings and to ensure access to justice for litigants, many of whom are self- represented. Daily 2915 Mc Clure Street Oakland, CA 94609 (510) 465-3920 Jon B. Maddock, Presiding Judge, Contra Costa Superior Court, enclosing a certified copy of the grant order and order to show cause in this court why Contra Costa Suprior Court Local Rule 12.5(b)(3) and the trial scheduling order in the present case should not be declared invalid for the reasons stated in the petition for extraordinary relief in the above-referenced case. The ACFLS’s brief also pointed to Respondent suggests its rule and order encourage settlement by “apprising both sides, well in advance of trial, of the facts that will be presented.” Local attorneys reported, however, that unfortunately the rule and order have not aided settlement, because parties take extreme positions in their declarations, causing an increase in animosity and a diminished likelihood of settlement. Such a task force might wish to consider proposals for adoption of new rules of court establishing statewide rules of practice and procedure for fair and expeditious proceedings in family law, from the initiation of an action to IV The judgment rendered by the Court of Appeal summarily denying the petition for writ of mandate or prohibition is reversed, and the matter is remanded to that court with directions to issue a writ in terms consistent with this opinion. Eisenberg Eisenberg and Hancock 1970 Broadway, Suite 1200 Oakland, CA 94612 (510) 452-2581 Paige Leslie Wickland Fancher & Wickland 155 Montgomery Street, Suite 1400 San Francisco, CA 94104 (415) 398-4210 from Daniel Severin Harkins, counsel for RPI Marilyn Elkins. Clerk's Office (415) 865-7183, with the original and hard copies to follow. Respondent Superior Court s return is to be filed on or before March 3, 2006. The various amici curiae, including local practitioners, confidently claim that any increase in settlements achieved by the rule and order occur because litigants generally cannot afford the substantial added litigation costs created by compliance with the rules. Opposition to be served upon counsel for petitioner by mail and facsimile (510) 465-7348, and filed in this court by p.m., Friday, December 23, 2005. Counsel notified by telephone; letter to follow by facsimile, with hard copies to follow. The Contra Costa County Superior Court is ordered to show cause in this court why Contra Costa County Local Rule 12.5(b)(3) and the trial scheduling order in the present case should not be declared invalid for the reasons stated in the petition for extraordinary relief. Attention is directed to CRC rule 56(h) for briefing requirements. We are most disturbed by the possible effect the rule and order have had in diminishing litigants’ respect for and trust in the legal system. The return is to be filed on or before March 3, 2006. Form enclosed for certification of interested entities or persons. Dailey enclosing certified copy of the grant order/order to show cause, as well as the certification of interested entitities and persons form. The Contra Costa survey confirmed that litigants believed the rule and order deprived them of the essential opportunity to “tell their story” and “have their day in court,” and felt the rule and order caused the lawyers who drafted the declarations to be the persons testifying, not themselves. 26, italics added.) In light of the volume of cases faced by trial courts, we understand their efforts to streamline family law procedures. Attention directed to CRC 56(h) for briefing requirements should he file a reply on behalf of petitioner. “Members uniformly report that their clients are stunned to be told that they will not get to tell their story to the judge,” and express “shock, anxiety and outrage” along with the belief that “they had been denied their specific difficulties caused by respondent’s order and rule. But family law litigants should not be subjected to second-class status or deprived of access to justice. Daniel Harkins, enclosing a certified copy of the grant order/order to show cause, and the certification of interested entities and persons form. “With [respondent’s] imposition of a discovery cut-off before any judicially supervised settlement, a litigant is forced to either forego potentially necessary depositions or [incur] unnecessary expense. on Trust and Confidence in the California Courts (2006) Phase II, pp. will continue to be negatively affected [by] procedures [that] do not permit [litigants] to tell their story at some length and in their own words”].) We are aware that superior courts face a heavy volume of marital dissolution matters, and the case load is made all the more difficult because a substantial majority of cases are litigated by parties who are not represented by counsel. Litigants with other civil claims are entitled to resolve their disputes in the usual adversary trial proceeding governed by the rules of evidence established by statute. Counsel may elect to file a return separately or may file a return jointly with respondent Superior Court. This creates a larger schism in the ever-widening two-tiered justice system — that for litigants who can afford to opt out of the public court system and retain private judges who do not impose unreasonable and arbitrary deadlines and that for those who cannot afford to do so.” Further, the ACFLS complains that respondent’s deadlines are very difficult to meet. Contra Costa County, Local Rules, rule 12.8 F.1.a) & b), eff. 1, 2007; right to have their case heard by a judicial officer.” Overwhelmingly, practitioners criticized the rule and order for creating what their clients understood to be a lesser standard of justice for family law litigants. 31-36 [self-represented litigants “express[ed] frustration that they did not have a chance to fully explain their side of the story to the judge”; “public trust and confidence in the courts . (See Judicial Council of Cal., Rep on Statewide Action Plan for Serving Self-Represented Litigants (2004) Executive Summary, p. It is at least 35 as important that courts employ fair proceedings when the stakes involve a judgment providing for custody in the best interest of a child and governing a parent’s future involvement in his or her child’s life, dividing all of a family’s assets, or determining levels of spousal and child support. Attention is directed to CRC 56(h) for briefing requirements. For example, a party’s notice of intent to call the opposing party as a witness, along with a description of “the testimony the party expects to elicit,” is due the same day the initial declarations are due. A recent statewide survey reflects a similar concern with court procedures that do not permit family law litigants to tell their story, a circumstance reported by litigants to diminish their confidence in the courts. 2 [80% of the cases have at least one unrepresented party by the time of disposition].) In its 2006 report, the Judicial Council estimated that “although family and juvenile cases represent 7.5 percent of total filings, they account for nearly of the trial courts’ judicial workload . The same judicial resources and safeguards should be committed to a family law trial as are committed to other civil proceedings. Admin, § 5.30(c).) As stated in the advisory committee comment to the California Standards for Judicial Administration: “It is only through the constant exertion of pressure to maintain resources and the continuous education of court-related personnel and administrators that the historic trend to give less priority and provide fewer resources to the family court can be changed.” (Advis. On application of Petitioner Jeffrey Elkins and good cause appearing, it is ordered that the time to serve and file his Reply to the Returns of Respondent and and Real Party in Interest is extended to and including May 18, 2006. Fuller dated 4-12-2006, requesting the opportunity to file an amicus curiae brief on behalf of the Southern California Chapter and Northern California Chapters of the American Academy of Matrimonial Lawyers, along with the Family Law Section of the State Bar of California, and the Honorable Sheila Press Soneshine, Jusrtice of the Court of Appeal, Retired, and the Honorable Donald King, Justice of the Court of Appeal, Retired, in support of petitioner, Jeffrey Elkins. Trial courts certainly require resources adequate to enable them to perform their function. NOTE: Telephone call placed to Aty Fuller's Office with a message to comply with California Rules of Court, rule 29.1(f) In the above entitled matter, the court requests the Family Law Section of the Contra Costa County Bar Association and the Association of Certified Family Law Specialists to file amicus curiae briefs addressing the issues presented by the case. If sufficient resources are lacking in the superior court or have not been allocated to the family courts, courts should not obscure the source of their difficulties by adopting procedures that exalt efficiency over fairness, but instead should devote their efforts to allocating or securing the necessary resources. The briefs should be filed as set forth in rule 29.1(f) of the California Rules of Court. App.4th 1093, 1107), to the extent they call for the introduction of declarations into evidence at trial in a marital dissolution action? Mailed copies of orders (including the grant order), petition, and answer (letter) to: (1) Mark Stephen Ericsson, President, Contra Costa County Bar Association, 704 Main Street Martinez, CA 94553 (2) Ronald Granberg, President, Association of Certified Family Law Specialists, 15 Corrillo Drive, San Rafael, CA 94903 "Notice of Unavailability of Counsel" from Garrett C. Simultaneous letter briefs are to be served and filed no later than May 11, 2007 and responsive letter briefs may be served and filed no later than May 18, 2005. Dailey, counsel for petitioner (Jeffrey Elkins) Dates: June 12 thru July 11, 2006; August 17 thru August 22, 2006, and December 4 thru December 8, 2006. Oral argument in this case will be divided as follows: 30 minutes for petitioner Jeffrey Elkins, followed by 15 minutes for respondent Superior Court of Contra Costa County, followed by 15 minutes for real party in interest Marilyn Elkins. -- joined by Kennard, Baxter, Chin, Moreno, Corrigan, JJ Concurring Opinion by Werdegar, J. On application of the Amicus Committee of the Family Law Section of the Contra Costa County Bar Association and good cause appearing, it is ordered that the time to serve and file the amicus curiae brief is extended to and including July 17, 2006. Richard Denner, Judge of the Superior Corut (Ret.) On application of Certified Family Law Specialists and good cause appearing, it is ordered that the time to serve and file the amicus curiae brief is extended to and including July 17, 2006. Richard Denner, Judge of the Superior Court (Ret.), in support of Petitioner Jeffrey Elkins. Judgment of the Court of Appeal reversed, and the matter is remanded to that court with directions to issue a writ in terms consistent with this opinion. and brief of Sothern California Cjapter of the American Academy of Matrimonial Lawyers, Northern California Chapter of the American Academy of Matrimonial Lawyers and Los Angeles County Bar Assoc., Hon. [ Application and Amicus Brief received 7-18-2006 (CRC 40.1(b) ] The application of Southern California Chapter of the American Academy of Matrimonial Lawyers, et al., for permission to file an amici curiae brief in support of Petitioner Jeffrey Elkins is granted. On application of Respondent Contra Costa County Superior Court and good cause appearing, it is ordered that the time to serve and file the Respondent's Answer to the Amici Curiae Brief of Southern California Chapter of the American Academy of Matrimonial Lawyers, et al. On application of Real Party in Interest Marilyn Elkins and good cause appearing, it is ordered that the time to serve and file Real Party's Answer to the Amici Curiae Brief of Southern California Chapter of the American Academy of Matrimonial Lawyers, et al., is extended to and including August 7, 2006. Donald King, Justice of the Ciourt of Appear(ret.)Hone. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. Sheila Prell Sonenshine, Justice of the Cour ot Appeal (Ret.), Hon. [ RPI's Answer filed 8-2-2006 ] The application of the Association of Family Law Specialists for permission to file an amicus curiae brief in support of petitioner is hereby granted. Sheila Prell Sonenshine, Justice of the Court of Appeal 9ret.), Hon. Southern California Chapter of the American Academy of Matrimonial Lawyers, Northern California Chapter of the American Academy of Matirmonial Lawyers, and Los Angeles County Bar Association, Los Angeles County Bar Association Family Law Section, Orange County Bar Association, Hon. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. The application of the Family Law Section of the Contra Costa County Bar Association for permission to file an oversized amicus curiae brief with exhibits in excess of ten pages is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. Real Party in Interest's [Marilyn Elkins] Answer to Amicus Curiae Briefs of the Southern California Chapter of the American Academy of Matrimonial Lawyers, et al., The Family Law Section of the Contra Costa County Bar Association and The Association of Certified Family Law Specialists. Respondent's Answer to Amicus Curiae Briefs by (1) the Southern and Northern California Chapters of the American Academy of Matrimonial Lawyers and several local bar associations and retired judges, (2) the Association of Certified Family Law specialists, and (3) the Family Law Section of the Contra Costa County Bar Association. July 1, 2005), the trial scheduling order in the present case, & the court's current local rule (Super. The parties are directed to file simultaneous letter briefs addressing the following question: Are the Contra Costa County Superior Court's prior local rule of court (see Super.

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