Lief v. Superior Court
- Area
- family
- Panel
- Joan K. Irion (author), Cynthia Aaron, William S. Dato
Analysis
The trial court denied the petitioner's ex parte application to prevent the removal of a minor child to Israel, erroneously ruling that the 30-day statutory stay began running from a tentative decision rather than the final judgment. The Court of Appeal granted a writ of mandate, vacating the trial court's order and directing it to grant the application to prevent the move until the statutory stay expired.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of ex parte application to prevent removal of child to Israel based on the start date of the 30-day statutory stay.“The family court erred when it ruled the 30-day statutory stay commenced with its decision of August 10, 2018, tentatively granting Nissan's move-away request.” | de novo | error (statutory interpretation) | agree with court The appellate court correctly identified that Code of Civil Procedure section 917.7 stays a judgment for 30 days from the 'entry of judgment.' The trial court's August 10 ruling was explicitly tentative and subject to conditions, not a final judgment. Therefore, the stay period began on November 7, 2018, when the final judgment was filed. The trial court's reliance on the tentative decision date was a clear error of law regarding the definition of a judgment and the statutory trigger for the stay. |
Authorities
- relied: Lewis v. Superior Court (1999) 19 Cal.4th 1232 — Peremptory writs are appropriate when material facts are not in dispute, the law is settled, and no useful purpose would be served by plenary consideration.
- relied: Jane J. v. Superior Court (2015) 237 Cal.App.4th 894 — Supports the issuance of a peremptory writ in the first instance in appropriate circumstances.
- relied: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — Procedural authority for staying orders and inviting responses in mandate proceedings.
The appellate opinion: sound — The opinion is sound because it correctly applies the statutory definition of 'entry of judgment' to distinguish between a tentative decision and a final judgment, thereby accurately calculating the start of the 30-day stay period. The court also properly cites established standards for issuing a peremptory writ in the first instance given the urgency and lack of factual dispute.
The family court ruled that the 30-day statutory stay under Code of Civil Procedure section 917.7 began running from its August 10, 2018 tentative oral decision granting the mother's move-away request, denied the father's ex parte application to prevent removal of the child before the stay expired, and ordered the child turned over for departure to Israel. The Court of Appeal granted a peremptory writ of mandate in the first instance, holding the stay ran from entry of the November 7, 2018 judgment, and directed the family court to vacate its order and grant the father's application.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of father's ex parte application to prevent move-away before expiration of the 30-day stay, based on ruling that the stay commenced with the August 10, 2018 tentative decision“The family court erred when it ruled the 30-day statutory stay commenced with its decision of August 10, 2018, tentatively granting Nissan's move-away request.” | de novo | error (statutory interpretation) | agree with court Section 917.7 stays a judgment or order allowing removal of a child for 30 calendar days from 'entry of judgment or order.' An oral tentative decision with unmet conditions is not a judgment or order under rule 3.1590(b), and the family court itself acknowledged its decision remained tentative. Entry occurred on filing of the November 7 judgment (rule 8.104(c)(1)), so the stay ran to December 7. The statutory text and rules squarely support the appellate court, and the real party conceded the point. |
Issuance of peremptory writ in the first instance rather than alternative writ and plenary consideration“The material facts are not in dispute, the applicable law is settled, Nissan concedes Lief is entitled to relief, the need for final resolution of the child's custody is urgent, and no useful purpose would be served by plenary consideration of the issue.” | de novo | correct | agree with court The court followed the Palma procedure by notifying the parties and inviting a response, and the Lewis factors (undisputed facts, settled law, urgency, concession by real party) justify a peremptory writ in the first instance. |
Authorities
- relied: Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 — Before issuing a peremptory writ in the first instance, the appellate court must give notice to the parties and an opportunity to respond.
- relied: Lewis v. Superior Court (1999) 19 Cal.4th 1232 — A peremptory writ in the first instance is appropriate where the facts are undisputed, the law is settled, and the matter is urgent or further briefing would serve no useful purpose.
- relied: Jane J. v. Superior Court (2015) 237 Cal.App.4th 894 — Issuance of a peremptory writ in the first instance is proper where the petitioner's entitlement to relief is clear and the case is urgent.
The appellate opinion: sound — The opinion applies the plain text of section 917.7 ('entry of judgment or order') together with rules 3.1590(b) and 8.104(c)(1) to conclude a tentative oral decision does not start the stay, and the trial court's own statement of decision confirmed its decision remained tentative. The procedural path to a peremptory writ in the first instance is properly supported by Palma, Lewis, and Jane J., and the result was conceded by the real party in interest.
Opinion
Filed 12/6/18; Certified for Publication 1/2/19 (order attached)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
YARON LIEF, D074947
Petitioner, (San Diego County Super. Ct. No. 17FL003120C) v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
PNINA NISSAN,
Real Party in Interest.
ORIGINAL PRODEEDING in mandate. David B. Oberholtzer, Judge. Petition granted.
Dennis Temko for petitioner.
No appearance for respondent.
Bickford & Blado LLP and Andrew J. Botros for real party in interest.
Petitioner Yaron Lief challenges by petition for writ of mandate an ex parte order of respondent San Diego County Superior Court (the family court) purporting to allow real party in interest Pnina Nissan to move with their minor child to Israel before expiration of the 30-day statutory stay of the judgment allowing removal of the child from California. (Code Civ. Proc., § 917.7.) We grant the petition.
BACKGROUND
Lief and Nissan met in Israel in 2010. Nissan moved to San Diego and married Lief in 2011. They had a son in 2014. Lief filed a marital dissolution action against Nissan in 2017. The family court bifurcated the issue of custody and visitation, held a trial on Nissan's request to move with the child to Israel, and tentatively granted the request on August 10, 2018. Upon Lief's motion for reconsideration, the family court reopened the hearing to consider additional evidence and argument. The court ultimately entered a judgment granting Nissan's move-away request on November 7, 2018.
After receiving notice from Nissan that she intended to depart for Israel with the child on November 22, 2018, Lief filed an ex parte application with the family court for an order preventing the move-away until after December 7, when the 30-day stay of the judgment granting the move-away request would expire. (Code Civ. Proc., § 917.7.) The court ruled its August 10, 2018 order tentatively granting Nissan's move-away request started the stay period running, denied Lief's application on November 21, and ordered Lief to turn over the child to Nissan that evening.
Lief petitioned us for a writ of mandate and requested an immediate stay of the ex parte order purporting to allow Nissan to move to Israel with the child on November 22, 2018. Lief argued Nissan could not then take the child to Israel because the stay of the judgment provided by Code of Civil Procedure section 917.7 would not expire until 2 December 7. We stayed the family court's order, advised the parties we were considering issuing a peremptory writ in the first instance, and invited Nissan to file a response to the petition. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) In her response, Nissan conceded Lief is entitled to relief and agreed not to leave the state until after December 7.
DISCUSSION
The family court erred when it ruled the 30-day statutory stay commenced with its decision of August 10, 2018, tentatively granting Nissan's move-away request. A judgment or order of the family court allowing removal of a minor child from this state is stayed "for a period of 30 calendar days from the entry of judgment or order." (Code Civ. Proc., § 917.7, italics added.) The court's oral statement of its decision at the end of the August 10 hearing was not a judgment or order. The statement contained several conditions, including the drafting of a visitation plan by Lief's attorney, which had to be met before Nissan could move away with the child. Furthermore, in the family court's written statement of decision, filed after the court reopened the custody and visitation trial to consider additional evidence and argument, the court acknowledged it "had not entered judgment and its decision remained tentative pending the final statement of decision." A "tentative decision does not constitute a judgment and is not binding on the court." (Cal. Rules of Court, rule 3.1590(b).) Thus, the August 10 tentative decision did not commence the 30-day statutory stay period. Rather, the period began to run when the family court filed the judgment granting Nissan's move-away request on November 7.
(Id., rule 8.104(c)(1) [entry date of judgment is date of filing].)
3 To correct the family court's error in ruling the stay began to run on August 10, 2018, issuance of a peremptory writ in the first instance is appropriate. The material facts are not in dispute, the applicable law is settled, Nissan concedes Lief is entitled to relief, the need for final resolution of the child's custody is urgent, and no useful purpose would be served by plenary consideration of the issue. (Code Civ. Proc., § 1088; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1240-1241; Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 909-910.)
DISPOSITION
Let a writ issue commanding respondent, immediately upon receipt of the writ, to vacate its November 21, 2018 order denying petitioner's ex parte application for an order preventing real party in interest from removing the child from this state, and to enter a new order granting the application. The stay previously issued by this court is dissolved.
This opinion shall be final as to this court upon filing. (Cal. Rules of Court, rules 8.490(b)(2)(A).) Petitioner is entitled to costs. (Id., rule 8.493(a)(1)(B).)
IRION, J.
WE CONCUR:
AARON, Acting P. J.
DATO, J.
4 Filed 1/2/19
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
YARON LIEF, D074947
Petitioner, (San Diego County Super. Ct. No. 17FL003120C) v.
THE SUPERIOR COURT OF SAN ORDER CERTIFYING OPINION FOR DIEGO COUNTY, PUBLICATION
Respondent;
PNINA NISSAN,
Real Party in Interest.
THE COURT:
The opinion in this case filed December 6, 2018, was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and ORDERED that the words "Not to Be Published in the Official Reports" appearing on page one of said opinion be deleted and the opinion herein be published in the Official Reports.
1 AARON, Acting P. J.
Copies to: All parties
Cites, in this corpus
- Jane J. v. Superior Court G051603 · 2015-06-16
- Lewis v. Superior Court S061240 · 1999-02-08
- Palma v. U.S. Industrial Fasteners, Inc. L.A. No. 31725 · 1984-06-07