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) AB 522 (Bloom) Page 2 of ? 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 AB 522 (Bloom) Page 3 of ? 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. AB 522 (Bloom) Page 4 of ? 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 AB 522 (Bloom) Page 5 of ? 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. AB 522 (Bloom) Page 6 of ? 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 AB 522 (Bloom) Page 7 of ? 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) **************