Blumenthal v. Superior Court

Opinion

I. SUMMARY

In this writ proceeding we hold that the trial judge abused her discretion in declaring a mistrial in a family law case merely because the parties did not complete the long-cause trial of a dissolution prior to an arbitrary deadline set by the trial judge. (The actual trial, in fact, had consumed less than two court days, and there was only one witness left to call and only a few more hours left to go.)^[1]

We also hold, since trial was already in progress, that it was “possible” within the meaning of Family Code section 2330.3 for the trial judge, assigned at the time of the trial to a “family law” panel, to have taken the case with her to her subsequent courtroom assignment, and in fact she should have taken it. (As it turned out, her new assignment is literally one courtroom away in the same courthouse and is still denominated a “family law” assignment.) We will therefore grant the petition brought by the wife for a writ of mandate ordering the trial court to vacate the mistrial and set the matter for completion of the trial before this same trial judge.

II. FACTS

Until the beginning of trial in October 2005 the case had proceeded at what can only be described as a leisurely trot. The petition for dissolution was filed more than five years ago, and in the previous century (September 1999). The record in this writ proceeding shows that Judge Nancy A. Pollard was assigned to the case no later than April 2002. The case was considered a “long cause” matter. While the status of marriage was officially dissolved in

The record in this writ proceeding does not reveal why the trial judge granted most of these continuances. It is clear, though, that Judge Pollard continued to preside over the case during the period, and, on the record before us, we presume there was good cause for each continuance. (See Civ. Code, § 3548 [presumption that “The law has been obeyed”].) In any event, at the end of the first day of trial testimony on October 31, the trial judge told the parties that the next date available to hear their case would be November 18. She ordered the parties back, but also stated: “We will finish. I want everybody to think about what their most important questions are because the very last important question is going to be asked and answered at three o’clock.”

So that readers can have a better sense of exactly what happened, we will now detail the proceedings of the afternoon of November 18 as they led to the mistrial.

The afternoon session that Friday began with the redirect examination of an expert for the husband (as the nominal “respondent” in the litigation, having put on his case-in-chief last) by the husband’s counsel. Then came recross examination of the expert by the wife’s counsel, and further redirect from the husband’s counsel.

The examination of the expert finished before three o’clock. Wife’s counsel asked if she could call her own expert for “one quick question on his bill so we have that in evidence and [then] he [could] leave.” Husband’s counsel then added that she might “have a couple a questions” for that expert too. But then husband’s counsel told the court that she didn’t want the wife’s expert “calling him back again to ask him one or two more questions when we get to [husband’s] case by asking whatever questions we have now.”

At that moment, apparently about 2:50 p.m. in the afternoon, the trial judge interjected: “I’m concerned that this case has gone way beyond the time allotted, way beyond. We’re going to finish at three o’clock or I’m going to mistry this case.”

The court was firm: “Well, then, this case is going to be mistried.”

Wife’s counsel then offered to simply have the evidence of her expert’s bill made a matter of stipulation based on his written statement.

Husband’s counsel, however, felt that her client was being prejudiced in the total time allocation: “Not that I’m looking certainly for a mistrial—I don’t see how that is going to cure the fact that petitioner [wife] has been given a fair amount of time to try this case, and so far we’ve been given some time, but not as much time, and my client doesn’t get to testify? He needs to testify and put on his part of the case.”

The judge immediately returned to the theme that the whole case had simply been going on too long. “Counsel, how long have we been going on this case?”

Wife’s counsel replied in one word. “Forever.”

The judge responded: “Forever. And I cannot see that it’s going [to] get finished today.”

Wife’s counsel quickly made the point that it would be real disservice to her client if the case were mistried, and argued that the delays were due to the husband’s “antics.” She argued in that regard that the husband had tried to delay the case “again this morning by bringing in another new report that I have never seen. If we mistry this thing, this is exactly what he wants” since that would leave the wife “depleted.”

The court then inquired about the existence of a support order. There was one—$2,500 a month, $625 being spousal—and the husband’s counsel quickly protested that “there is certainly blame to go around on the [wife’s] side .... It’s not fair to point fingers.”

The trial judge immediately shifted the focus of the discussion to her own calendar: “Ms. Grace, Ms. Langston, let me tell you both[^[3] ] this court is

The word “only,” and the phrase “chances of receiving a fair trial . . . irreparably damaged” in the Supreme Court’s formulation express a presumptive (and commonsense) reluctance to allow the waste of resources that mistrials entail—a level of scrutiny perhaps a little higher than the most permissive in the law.^[6] An analogy might be drawn, in this regard, to the standard of review on trial court decisions to set aside defaults. Both grants of set aside motions and denials are still tested under the abuse of discretion standard, but the cases have evolved a somewhat stricter standard for review of denials of set aside motions than grants of them. (See Elston v. City of Turlock (1985) 38 Cal.3d 227 , 233 [ 211 Cal.Rptr. 416 , 695 P.2d 713 ] [“a trial order denying relief is scrutinized more carefully than an order permitting trial on the merits”]; Brill v. Fox (1931) 211 Cal. 739 , 743-744 [ 297 P. 25 ] [“Although it is true that courts of appeal have shown great reluctance in cases of this kind to disturb the order of the trial court, it is equally true that denials

The case before us is unusual in that the reason for the mistrial had nothing to do with prejudice to a party. What is clear from the record of proceedings on November 18 is that husband’s counsel didn’t move for, ask for, or otherwise expressly desire a mistrial. Husband’s counsel merely wanted to complete her client’s case by calling her client.^[7] The matter thus comes to us in the posture of the trial judge declaring a mistrial over the wishes of both parties. The mistrial was declared for reasons peculiar to the trial judge’s own calendar.

In that regard, we examine the substantive law on that point for further clues as to the appropriate standard of review. There are three such clues, and they all point in the same direction.

First, as a matter of the formal standards of judicial administration, there is a rule that every judge shall hear all matters to which he or she is assigned. (Cal. Stds. Jud. Admin., Std. 6.608 [“Each judge must: [h]ear all assigned matters unless he or she is disqualified . . . .”].)

Second, the administrative rule requiring each judge to hear all assigned matters is, if anything, heightened in family law cases. As regards family law assignments, the Legislature has specifically declared that: “All dissolution actions, to the greatest extent possible, shall be assigned to the same superior court department for all purposes, in order that all decisions in a case through final judgment shall be made by the same judicial officer.” (Fam. Code, § 2330.3, subd. (a), italics added.) While the “possible” within the “greatest extent possible” formulation certainly indicates that abuse of discretion is the standard, at the same time the words “greatest extent possible” suggest a bona fide effort to have the same judge hear all decisions through final judgment. “Possibility” is not some cloak of invisibility that fits any size.

B. The Merits

1. The Matter of Time

The common law rules regarding mistrials were forged in the general context of protecting parties against irreparable prejudice, rather than protecting the trial court’s own institutional interest in managing its time efficiently. The trial court’s interest in efficient time management of its own time, at least as regards civil cases, is specifically covered by a rule of court (Cal. Rules of Court, rule 214(c)), which provides that short cause matters that exceed the allotted time are subject to the discretionary decision of the trial judge to declare a mistrial or complete the trial.

The mechanics of rule 214 go like this: First “short cause” matters are defined as five hours in terms of “the time estimated for trial by all parties or the court.” (Cal. Rules of Court, rule 214(a).) Next, there is a provision to allow some cases to be considered a short cause and thus exempted from requirements of “case management review” that would otherwise attach. (Cal. Rules of Court, rule 214(b).) The final subdivision, subdivision (c), shows the teeth of the rule, giving the trial judge discretion to declare a mistrial if the five hour limit^[8] is exceeded. The language of this final subdivision unambiguously makes the decision a matter of trial court discretion. (“If a short cause case is not completely tried within five hours, the judge may declare a mistrial or, in the judge’s discretion, may complete the trial. In the event of a mistrial, the case will be treated as a long cause case and must promptly be set either for a new trial or for a case management conference.”) In light of this provision, the Rutter Group family law practice guide advises litigants to prudently err on the side of overestimating time if there is any doubt, which may mean treating the case as a long cause matter when it might otherwise be short cause. (Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group 2005) ][ 13:24, p. 13-6 [“Underestimations of time can backfire! If a case is set for trial as a ‘short cause’ is not completed within short cause time limits . . .

There is, however, no equivalent rule of court for long cause matters. The implication is—though surely within the bounds of reason and sound trial court administration—there are no arbitrary limits on trial time. We hasten to add, of course, that trial courts retain great power to prevent civil trials from taking more time than necessary (e.g., Evid. Code, § 352 [“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time . . . .”]) and thereby wasting public resources on the back end (too much time) rather than the front (via a mistrial).^[9]

However, some counties—conspicuously Orange County is not among them—have local rules that specifically provide for the problem of litigants in family law cases giving the trial court trial time estimates in long cause matters that are too short. The superior courts of San Diego, Santa Barbara, and Santa Clara all have local rules which provide for mistrials based on litigants exceeding their own time estimates.^[10] However, this court is unaware of any local rule which puts maximum time limits on any given family

For our purposes here, the salient fact is that Judge Pollard did not mention anything about the parties’ failure to adhere to any time estimate that they had previously given (assuming, for sake of argument, that that would even be a valid reason to declare a mistrial in Orange County where, in contrast with San Diego or Santa Barbara, there is no rule warning litigants of such a result). At the most there was only an oblique mention of the parties exceeding “allotted time,” and the only referent for that “time” was the judge’s own previously stated 3:00 p.m. Friday deadline. As this court observed in Abbott v. Mandiola (1999) 70 Cal.App.4th 676 , 681, footnote 5 [ 82 Cal.Rptr.2d 808 ], “A trial, unlike grand master chess or the last two minutes of a close football game, should not become a race against the clock.”

Of course, had the parties agreed on a one-week time estimate and it appeared they were going to take two weeks, the trial judge obviously would have been able to take some corrective action. Perhaps that corrective action might even include (along the lines of the San Diego, Santa Barbara and Santa Clara local rules) declaring a mistrial.^[11] But this case involved less than even two days of trial testimony—the parties didn’t even get a half of a half day that Friday afternoon—with only a few hours left to go.

The trial judge also expressed a genéral dissatisfaction with the amount of time the trial was taking in relationship to the amount at issue in the case, but that of course could not by itself justify a mistrial. Surely, we have no rule in California that the rich in their divorces get more time for justice than the poor in theirs. Moreover, the trial judge acknowledged that she had been liberal in allowing the parties to make objections, but that also could not justify a mistrial. That only showed an admirable willingness on her part to give each side its day in court. If one party had indeed been making frivolous objections for the sake of delay, that problem could have been handled on its own terms, and in any event it is unfair to penalize both litigants if the judge was too liberal in entertaining objections from one side. And finally, as we have stressed above, the record shows that actual trial time had taken less than two days, which on this record could hardly be held to be objectively excessive.

2. The Matter of the New Assignment

The main reason which the trial judge gave for declaring a mistrial was her new assignment. Beginning the new year, she would handle a calendar in domestic violence. The implication of her comments on the record was that somehow her new assignment handling a domestic violence calendar would preclude her from hearing the last few hours of the Blumenthal divorce: “I’m not taking it to department L63 for my domestic violence calendar. I have no other choice. I have no other choice.”

On the surface, the statement that the trial judge had “no other choice” but to jettison the case upon going to her new courtroom seems dubious. One could hardly imagine a set of circumstances more conducive to completing a particular trial in a new courtroom or new assignment: The judge was literally moving over one courtroom (from L64 to L63) in the same building.^[12] Transporting the file would have been easy, and resuming the trial in the new courtroom would have posed no inconvenience to anybody.

Going beneath the surface, the trial judge’s statement implies an assumption which is dubious, or at least not supported by the record, namely that somehow the exigencies of the new domestic violence calendar would have crowded out the completion of the Blumenthal’s dissolution trial. But the judge did not make the case for any such assumption, and none appears from the record. There is no inherent reason that a judge, primarily assigned to hearing cases of alleged domestic abuse, cannot find a few extra hours to finish up a dissolution case in which she and the parties have already invested substantial time.

Undoubtedly one of the reasons the Legislature enacted Family Code section 2330.3 is that family law is one of those areas in which there is a particular need for continuity. (Cf. Bidna v. Rosen (1993) 19 Cal.App.4th 27 , 38-39 [ 23 Cal.Rptr.2d 251 ] [emphasizing ability of single-judge assignments