BILL ANALYSIS Ó
AB 522
Page 1
Date of Hearing: April 2, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 522 (Bloom) - As Amended: March 21, 2013
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT : Civil Actions: Exceptions to dismissal for delay in
prosecution
KEY ISSUE : Should the types of family law cases that are
exempted from automatic dismissal for delay in prosecution be
expanded to include three additional types of family law cases,
so that family law litigants will not lose the protection of
interim court orders due to an automatic dismissal?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill seeks to ensure that family law litigants will not
lose the protections and relief afforded by interim orders due
to the automatic dismissal of a case for delay in prosecution.
To ensure the timely adjudication of cases, existing law allows
a court to dismiss an action that is not brought to trial within
a specified period of time. However, in the area of family law,
where often the issues are complex, the litigants are
self-represented, and the stakes are particularly weighty, the
Legislature has already determined that certain family law cases
should not be subject to mandatory dismissal for delay. For
example, existing law exempts from the automatic dismissal rule
an action for dissolution of marriage or for legal separation if
there is a valid order for child or spousal support. This bill
would expand the types of cases to which the exemption to
dismissal applies to include the following: an action for the
dissolution of a domestic partnership, an action based on void
or voidable marriage, and an action relating to a child custody
or visitation order. According to the author, expanding the
exemption to these kinds of cases will protect family law
litigants from losing the protection of an interim order due to
an automatic dismissal of the action. This bill is sponsored by
the Family Law Section of the State Bar of California. The
Executive Committee of the Family Law Section of the Los Angeles
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County Bar Association supports this bill, albeit with a
friendly suggested amendment that the author has agreed to take
in this Committee. The bill summary below reflects this
amendment. There is no known opposition to this bill.
SUMMARY : Expands the types of actions to which the exception to
dismissal of an action for delay in persecution would apply.
Specifically, this bill :
1)Expands the types of actions to which the exception to
dismissal of an action for delay in prosecution applies to
include an action for the dissolution of a domestic
partnership, an action based on void or voidable marriage, and
an action relating to a child custody or visitation order.
2)Prohibits the dismissal of the types of actions described
above if any of the following conditions exist:
a) An order for child support or an order regarding child
custody or visitation has been issued in connection with
the proceeding and the order has not been terminated by a
court order or operation of law, as specified.
b) An order for spousal support has been issued in
connection with the proceeding and the order has not been
terminated by the court.
c) A personal conduct restraining order has been issued
pursuant to the Domestic Violence Protection Act and the
order has not been terminated by either operation of law or
by the court.
EXISTING LAW :
1)Provides that an action shall be brought to trial within five
years after the action is commenced against the defendant.
Authorizes a court to dismiss an action for delay in
prosecution if the action is not brought with the specified
time period, either on the court's own motion or on motion of
the defendant, after notice is provided to the parties. (Code
of Civil Procedure Sections 583.310 and 583.360.)
2)Prohibits dismissal for delay in prosecution in an action for
dissolution of marriage or for legal separation if a valid
order for child or spousal support exists, or, in an action
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for dissolution of marriage, a separate trial on the issue of
the status of the marriage has been conducted, as specified.
(Code of Civil Procedure Section 583.161.)
COMMENTS : Under current law, a civil action must be brought to
trial within five years of filing or it will be subject to
mandatory dismissal for "delay in prosecution," unless the
parties stipulate to an extension (Code of Civil Procedure
Sections 583.110 et seq.). The purpose of this rule is to
ensure that, once the action has been commenced, a plaintiff
proceeds in the prosecution of the lawsuit with diligence, and
that cases are adjudicated in a timely manner. As the
California Supreme Court explained, the purpose of the five-year
requirement is "to promote the trial of cases before evidence is
lost, destroyed, or the memory of witnesses becomes dimmed [and]
to protect defendants from being subjected to the annoyance of
an unmeritorious action remaining undecided for an indefinite
period of time." (General Motors Corp. v. Superior Court (1966)
65 Cal. 2d 88, 91.)
While dismissal for delay in prosecution makes sense in most
civil actions, it is not always appropriate for some family law
actions. For example, because family law matters are complex
and family law litigants often self-represented, delays are
sometimes unavoidable. In addition, family law matters involve
litigants with emotional attachments who may still have
reservations about the step that they are about take, and an
exception to mandatory dismissal for delay in many instances
will "provide a full opportunity for reconciliations to occur
between spouses who have children [and to] satisfy the frequent
need of children and spouses for continuing protection and
jurisdiction of the court." (In re Marriage of Hinds (1988) 205
Cal. App. 3d 1398, 1405.) Because of the special nature of some
family law actions, therefore, the Legislature has already
carved out important family law exceptions to the statute
requiring mandatory dismissal for delay. Specifically, existing
law prohibits dismissal for delay in any action for legal
separation or dissolution of marriage where there is a valid
order for child or spousal support or, in the case of a petition
for dissolution of marriage, there has been a separate trial on
the issue of the status of the marriage. This bill would expand
the types of family law cases that are exempted from dismissal
to include the following: an action for the dissolution of a
domestic partnership, an action based on void or voidable
marriage, and an action relating to a child custody or
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visitation order.
According to the author and sponsor, this bill serves at least
two important purposes. First, this measure will ensure that
family law litigants will not lose the protection or relief of
any interim orders due to a mandatory dismissal for delay.
Second, this measure will improve efficiency. The author notes
that, unlike other civil law matters that move through
non-substantive pre-trial motions relatively quickly, the
pre-trial motions in family law often deal with important and
substantive matters. When substantive matters have already been
resolved by pre-trial hearings and motions, the author reasons,
"it does not serve the parties interest or judicial economy to
dismiss the case and require new hearings and trial on
previously decided issues."
PROPOSED AUTHOR'S AMENDMENT : The author wishes to take the
following clarifying amendment in this Committee.
- On page 2, line 17, strike out "the court" and insert:
either operation of law, or by the court
A RGUMENTS IN SUPPORT : According to the author, as of 2010, "60
to 90 percent of family law cases nationally involved at least
one self-represented litigant, while 5 percent or fewer of cases
in general civil dockets include a self-represented litigant.
As the economy worsened, the number of self-represented
litigants in family law increased." These self-represented
parties, the author writes, "have little or no understanding of
how to work through the complex issues in their cases to reach
final and equitable resolution of the family's issues."
Moreover, if the complexity of the issues and litigant's lack of
experience results in a dismissal for delay - even where the
litigants proceed with due diligence - "precious resources spent
obtaining interim custody, support, and protection orders are
lost when cases are dismissed and the litigants are forced to
start over." In addition, the author notes that dismissal may
impact personal safety and well-being: "Where domestic violence
restraining orders have been issued, a party's safety (and that
of the minor child) could be jeopardized by automatic dismissal.
Where a court has made custody and visitation orders, the
children's well-being is impacted by automatic dismissal."
The sponsor, the Family Law Section (FLS) of the California
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State Bar, argues that it is "logical to continue to expand the
exceptions [to mandatory dismissal for delay] to encompass
pre-trial custody and visitation orders, restraining orders,
orders making preliminary property divisions, fee awards, and
other orders routinely issued prior to in family law cases."
FLS writes that "family law cases typically proceed in a manner
that greatly differs from general civil trials," especially in
that "important and substantive matters are decided through
pre-trial motions and bi-furcated proceedings." Therefore, FLS
concludes, if "a family law case is being actively litigated, it
should not be subjected to automatic dismissal . . . The
proposed legislation seeks to add consistency, uniformity, and
logic to the family law exceptions from automatic dismissal."
The Executive Committee of the Family Law Section of the Los
Angeles County Bar Associations supports this for substantially
the same reasons, with the clarifying author's amendment noted
above.
REGISTERED SUPPORT / OPPOSITION :
Support
Family Law Section of the State Bar of California (sponsor)
Association of Family and Conciliation Courts
Executive of the Family Law Section of the Los Angeles County
Bar Association (as amended)
Opposition
None on file
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334