BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 522 (Bloom)
As Amended May 24, 2013
Hearing Date: June 4, 2013
Fiscal: No
Urgency: No
NR
SUBJECT
Civil actions: exceptions to dismissal for delay in prosecution
DESCRIPTION
Existing law authorizes a court to dismiss an action for delay
in prosecution if not brought to trial within a specified period
of time, but prohibits dismissal of actions for dissolution of
marriage or legal separation under specified conditions,
including where a valid order for child or spousal support
exists.
This bill would expand the types of actions to which the above
prohibition to dismissal for delay in prosecution would apply to
include actions for the dissolution of a domestic partnership,
actions based on void or voidable marriage, and actions relating
to a child custody or visitation order. This bill would prohibit
any of these actions, including an action for dissolution of
marriage, from being dismissed if an order regarding child
custody or visitation has been issued, if a valid restraining
order exists, or if an issue in the case has been bifurcated, as
specified.
BACKGROUND
Existing law provides for the dismissal of an action where that
action has not been brought to trial within five years after the
plaintiff has filed his complaint, subject to certain
exceptions. This rule is designed to ensure that plaintiffs
diligently proceed with the lawsuit in a timely manner. From a
policy perspective, it is important that cases are tried before
evidence is lost or destroyed, the memories of witnesses become
(more)
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hazy, and to protect defendants from being subjected to
unmeritorious claims. In Bank of America v. Moore & Harrah, 54
Cal.App.2d 37, 43 the court explained that the "statute has the
very salutary purpose of expediting trials. Its language is
clear and definite and the integrity of its meaning has
generally been upheld by the courts in a plenitude of
decisions."
However, there are exceptions to this general rule, including
certain family law actions where litigants often represent
themselves, and deal with complex and highly emotional
constitutional and fundamental rights. Additionally, many
parties to family law litigation reconcile prior to the
conclusion of their case, or resolve their case through a series
of short hearings rather than in one major trial.
The Legislature has acknowledged that pro per litigants dealing
with these weighty and complex family issues may need more
protection than general civil litigants, and has exempted from
the automatic dismissal rule any action for dissolution of
marriage where there is a valid order for child or spousal
support, or where a separate trial on the issue of the status of
the marriage has been conducted. This bill would extend these
protections to actions for the dissolution of domestic
partnerships, actions based on void or voidable marriages, and
actions relating to child custody or visitation orders, as
specified.
CHANGES TO EXISTING LAW
Existing law provides that an action shall be brought to trial
within five years after the action is commenced, and authorizes
a court to dismiss an action for delay in prosecution if the
action is not brought within the specified time period, either
on the court's own motion or on motion of the defendant, as
specified. (Code of Civil Proc. Secs. 583.310, 583.360.)
Existing law prohibits dismissal for delay in prosecution in an
action for dissolution of marriage or legal separation if a
valid order for child or spousal support exists, or, if in an
action for dissolution of marriage, a separate trial on the
issue of the status of the marriage has been conducted, as
specified. (Code of Civ. Proc. Sec. 583.161.)
This bill would expand the types of actions to which the
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exception to dismissal of an action for delay in prosecution
applies to include: (1) an action for the dissolution of a
domestic partnership; (2) an action based on void or voidable
marriage; and (3) an action relating to a child custody or
visitation order.
This bill would prohibit dismissal of the types of actions
described above if any of the following conditions exist:
an order for child support or an order regarding child custody
or visitation has been issued in connection with the
proceeding, and that order has not been terminated by court
order or operation of law, as specified;
an order for spousal support has been issued in connection
with the proceeding and the order has not been terminated by
the court; or
a personal conduct restraining order has been issued pursuant
to the Domestic Violence Protection Act, and that order has
not been terminated by either operation of law or by the
court.
COMMENT
1.Stated need for the bill
According to the author:
[This bill is necessary] to protect family law litigants from
losing the protections and the relief afforded by interim
orders lost due to automatic case dismissal.
In 2010, national data show that 60 to 90 percent of family
law cases nationally involved at least one self-represented
litigant, while five 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 court increased.
Despite the best efforts of California's Judicial Council and
legal services organizations, most self-represented litigants
have little to no understanding of how to work through the
complex issues in their cases to reach final and equitable
resolution of the family's issues. Precious resources spent
obtaining interim custody, support, and protection orders are
lost when cases are dismissed and the litigants are forced to
start over.
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2.Further protects of interim and pretrial orders for family law
litigants
Existing law protects an action for dissolution of marriage from
automatic dismissal if there is a valid child or spousal support
order, or if the status of the marriage has been separately
tried. This bill would extend these protections to parties who
have filed actions for dissolution of a domestic partnership, a
void or voidable marriage, or actions relating to a child
custody or visitation order and would include, among the
circumstances in which a court may not automatically dismiss an
action, cases with a valid custody or visitation order, a valid
restraining order, or if any issue in the case has been
bifurcated for separate trial.
Expanding existing protections to cover a larger variety of
circumstances common to family law will arguably protect
litigants, often self-represented, from having to re-litigate
issues which have been previously determined, in the event that
a case remains open for more than five years. These
circumstances including custody, restraining orders, and issue
bifurcation, are highly common to actions filed in family court,
and represent important issues to any final resolution.
To this end, the author notes that, "family law cases typically
proceed in a manner that differs greatly from general civil
cases. Rather than moving through non-substantive motion
practice and discovery to trial, in family law important and
substantive matters are decided through pre-trial motions and
requests for orders or bifurcated proceedings. ? Precious
resources spent obtaining interim custody, support, and
protection orders are lost when cases are dismissed and the
litigants are forced to start over. Where domestic violence
restraining orders have been issued, a party's safety (and that
of the minor children) could be jeopardized by automatic
dismissal."
Further, the sponsor argues that "the purpose of the mandate to
bring cases to trial within five years is to try cases when
witness's memories are fresher and the evidence has not gone
stale, and to protect defendants from being subjected to
unmeritorious claims. But, unlike civil litigation, wherein the
actual parties rarely set foot in a courtroom prior to trial,
family law litigants often litigate core issues of custody,
visitation, support, property restraint and other forms of
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injunctive relief prior to trial. Yet, cases wherein a court
has made such temporary orders are not exempted from mandatory
dismissal. This proposal would bring consistency to the Code."
Staff notes that protecting these cases from automatic dismissal
may actually protect evidence and witness memory, by allowing
the court to rely on early determinations related to custody,
support, visitation, or otherwise, even in the event that the
dissolution takes in excess of five years to complete.
In support of this bill, the Association of Family Law
Specialists writes, "we deem it a wise course to exempt active
family law cases with existing orders from the five-year statute
of limitations imposed under [existing law], when critical
temporary orders are so often essential to maintain the safety
or stability of families in cases that are not ready to proceed
to trial or final settlement.
3.Extends protections to other situations similar to traditional
dissolution of marriage
Existing law protects actions for dissolution of a marriage from
automatic dismissal, where specified conditions are present.
This bill would extend these to actions where parties have filed
for dissolution of a domestic partnership, actions resolving a
void or voidable marriage, or actions relating to a child
custody or visitation order.
a. Domestic partnerships
California defines domestic partners as "adults who have
chosen to share one another's lives in an intimate and
committed relationship of mutual caring." (Fam. Code Sec.
297.) A domestic partnership is established when both persons
file a valid Declaration of Domestic Partnership with the
Secretary of State. Registered domestic partners are
guaranteed the same rights, protections, and benefits as
married couples, and are also subject to the same
responsibilities, obligations, and duties under law as
spouses. (Fam. Code Sec. 297.5.) Thus, extending the
provisions of this bill to dissolutions of domestic
partnerships is consistent with existing law, and will serve
to further ensure fair and equal treatment of domestic
partnerships.
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b. Void and voidable marriages
A void marriage is a marriage which is unlawful or invalid
under the laws of the jurisdiction where it is entered, and
is therefore invalid from its beginning. Void marriages
thus require no formality to terminate. A marriage,
however, which can be canceled at the option of either
party is merely voidable, meaning it is subject to
cancellation if contested in court. Most marriages that are
entered into in good faith, but which is subsequently found
to be void, are recognized as putative marriages which
guarantees the parties certain rights granted by statute or
common law.
This bill would prohibit an automatic dismissal of an action
regarding a void or voidable marriage if certain conditions,
such as a custody or support order, or a bifurcation of an
element of the case, are present. This will ensure that
pretrial orders will remain in place as the court determines
whether a marriage is valid or not, and how to resolve issues
such as custody and the distribution of what was thought to be
marital assets.
c. Actions relating to a child custody or visitation order
This bill would prohibit an automatic dismissal of an action
related to a child custody or visitation order. This will
arguably protect litigants from having to re-litigate issues
simply because too much time has passed (See Comment 2).
Support : Association of Certified Family Law Specialists;
Association of Family and Conciliation Courts; Bar Association
of San Francisco-Family Law Section; Executive Committee of the
Family Law Section of the Los Angeles County Bar Association
Opposition : None Known
HISTORY
Source : Family Law Section of the State Bar of California
(FLEXCOM)
Related Pending Legislation : None Known
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Prior Legislation : AB 2208 (Assembly Committee on Judiciary,
Chapter 1269, Statutes of 1994) among other things, created two
additional exceptions to the requirement for bringing a civil
action to trial within five years for (1) actions for
dissolution of marriage or legal separation in which a spousal
support order issued in connection with the proceeding is in
effect and (2) actions for dissolution of marriage in which a
trial on the issue of the status of the dissolution of the
marriage has been conducted separately from a trial of other
issues in the action.
Prior Vote :
Assembly Floor (Ayes 77, Noes 0)
Assembly Judiciary Committee (Ayes 9, Noes 0)
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