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Transferring Exempt Property May Not be a Fraudulent Transfer Under California Law It is not uncommon for debtors to want to maximize the amount of property they get to keep to avoid creditor collection efforts, especially efforts to collect their personal residence. Generally, the California Uniform Voidable Transactions Act (UVTA) prohibits debtors from transferring ownership ... Read...

Transferring Exempt Property May Not be a Fraudulent Transfer Under California Law

It is not uncommon for debtors to want to maximize the amount of property they get to keep to avoid creditor collection efforts, especially efforts to collect their personal residence. Generally, the California Uniform Voidable Transactions Act (UVTA) prohibits debtors from transferring ownership of their assets to family, friends, or legal entities so their creditors cannot collect.

However, the laws create a specific, statutory exclusion from fraudulent transfer claims for property that has no equity beyond an exemption, including transferring a personal residence subject to California’s homestead exemption. Such transfers may be entirely exempt from an attack as a fraudulent transfer in California court, also known as fraudulent conveyance, or voidable transaction. A skilled debtor and creditor rights attorney can help maximize exemptions while avoiding the disastrous consequences of a failed transfer of property.

The Language of California’s Uniform Voidable Transactions Act Excludes Exempt Property, Including a Personal Residence Subject to a Homestead Exemption

Under the California California Uniform Voidable Transactions Act (UVTA), creditors can attack as an actually fraudulent transfer a “transfer” made “With actual intent to hinder, delay, or defraud any creditor of the debtor” or “Without receiving a reasonably equivalent value in exchange for the transfer or obligation….” California Civil Code § 3439.04. Creditors can also seek to avoid as a constructively fraudulent transfer any “transfer” made “without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.” California Civil Code § 3439.05.

In turn, the definitions under the California Uniform Voidable Transactions Act provides that “‘Transfer‘ means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, license, and creation of a lien or other encumbrance.” California Civil Code § 3439.01(m).

Related thereto, the definitions under the California Uniform Voidable Transactions Act also provide that: “‘Asset’ means property of a debtor, but the term does not include the following: (1) Property to the extent it is encumbered by a valid lien. (2) Property to the extent it is generally exempt under nonbankruptcy law.” California Civil Code, § 3439.01(a).

What this means is that property exempted under California’s exemption laws is also generally excluded from the definition of an asset that can be subject to a claim that of being a fraudulent transfer.

Case Law Further Suggests that Transfers of Exempt Property are Excluded from the Laws on Fraudulent Transfers

As this exemption has been explained by one California court in 2019, “the [California] UVTA defines an asset as the ‘property of a debtor,’ excluding property ‘to the extent it is encumbered by a valid lien[,]’ and ‘to the extent it is generally exempt under nonbankruptcy law.’ ([California Civil Code] § 3439.01, subd. (a).) As noted by the Legislative Committee Comments, the definition of asset ‘requires a determination that the property is subject to enforcement of a money judgment. Under Section 704.210 of the Code of Civil Procedure, property that is not subject to enforcement of a money judgment is exempt.’ (Legis. Com. com., 12A pt. 2 West’s Ann. Civ. Code (2016 ed.) foll. § 3439.01, p. 253.)” Potter v. Alliance United Ins. Co. (2019) 37 Cal.App.5th 894, 906.

This decision follows a 1994 California court of appeal opinion: “It has long been the rule that a gift, sale, or pledge of any part of a homestead cannot, under any circumstances, be with intent to defraud a creditor not having a lien upon the premises, for a creditor is not entitled to complain of the transfer by the debtor of an asset which he could not have reached, had the debtor retained it. If the homestead is valid, no attempted disposition or conveyance of the property, however fraudulent, injures the creditor. For such act, whether effective or not, leaves the creditor in the same position in which he would have been before it was done. While defendant’s attempt to defeat his creditors is not commendable, such conduct neither enlarges plaintiff’s rights nor gives him benefits as punishment of defendant. In such circumstances the defendant’s motives are immaterial.” Tassone v. Tovar (1994) 28 Cal.App.4th 765, 768 (quoting Oppenheim v. Goodley (1957) 148 Cal.App.2d 325, 328).

“Mehrtash [v. Mehrtash (2001) 93 Cal.App.4th 75, 80] rightly affirmed the longstanding principle that injury-in-fact is an essential element of a claim under the UFTA [Uniform Fraudulent Transfer Act] , and we follow that principle in the present case. A creditor has not been injured unless the transfer puts beyond reach property the creditor could subject to payment of his or her debt.” Fidelity National Title Ins. Co. v. Schroeder (2009) 179 Cal.App.4th 834, 845.

The Fidelity court continued that: “Rather, we reiterate and adopt the following language of the Mehrtash opinion: ‘Even assuming the allegedly fraudulent conveyance were set aside and the property were hypothetically available to enforce the plaintiff’s money judgment, it could not be sold without a court order because it is the debtor’s dwelling, and could not be sold without a minimum bid equal to all encumbrances and senior liens plus the homestead exemption. The plaintiff produced no evidence that the value of the property could support any net recovery for her in the event the conveyance were set aside.’ (Mehrtash, supra, 93 Cal.App.4th at p. 81) Here, likewise, the evidence at trial showed that Fidelity could not have obtained any net recovery if the transfer were set aside and a forced sale of the property was sought.” Fidelity National Title Ins. Co. v. Schroeder (2009) 179 Cal.App.4th 834, 847.

A number of secondary sources have also discussed this requirement of an of an “injury” to creditor required to attack a transfer as fraudulent under California law. See Requirement of Injury to Creditor., 8 Witkin, Cal. Proc. 5th Enf Judgm § 497 (2020); 16A Cal. Jur. 3d Creditors’ Rights and Remedies § 406 (“A creditor has not been injured unless the transfer puts beyond the creditor’s reach property that he or she otherwise would be able to subject to the payment of his or her or her debt”); Prelawsuit Considerations, Cal. Prac. Guide Enf. J. & Debt (Rutter Group 2020) Ch. 3-C, 3:318.1 (“Mehrtash v. Mehrtash (2001) 93 CA4th 75, 81, 112 CR2d 802, 806—real property conveyance not fraudulent where plaintiff not injured (no evidence that value of property could support net recovery with mortgages, senior liens and homestead exemption)”).

Transferring a Home with No Equity May be Excluded from California’s Fraudulent Transfer Laws

The law is that: “A transfer in fraud of creditors may be attacked only by one who is injured by the transfer. A creditor does not sustain injury unless the transfer puts beyond his reach property which he otherwise would be able to subject to the payment of his debt.” Haskins v. Certified Escrow & Mortg. Co., (1950) 96 Cal. App. 2d 688, 691. Since a creditor would not have benefited from collecting on a debtor’s property with no equity, transferring such property should generally not be considered a fraudulent conveyance.

Transferring a Home After a 522(f) Motion to Avoid a Lien as Impairing an Exception in Bankruptcy Appears to be Excluded from Attack as a Fraudulent Transfer

One common strategy for debtors to address a recorded abstract of judgment that encumbers their house is to file a bankruptcy, followed by a motion to avoid the judgment lien as impairing their homestead exemption under 11 U.S.C. 522(f). In fact, various cases throughout the country establish that a homestead is protected under 522(f) despite the potential nondischargeability of a judgment lien recorded on the home. Related to this concept, a motion to avoid a lien under 522(f) is seemingly akin to a finding that a debtor’s personal residence has no equity for the creditor beyond the homestead exemption. Upon such a finding, a debtor may be entitled to transfer the property on the basis that it has no equity available for creditors without being subject to a state court attack by the creditor.

Note that research has yet to reveal whether bankruptcy courts in California would reach the same conclusion if a bankruptcy were filed after such a transfer. However, federal courts in California have cited Mehrtash with approval. See Avila v. Bank of America (N.D. Cal., Sept. 20, 2017, No. 17-CV-00222-HSG) 2017 WL 4168534, at *3 (“In order to state a claim, however, it is not enough to plead ‘[m]ere intent to delay or defraud.’ Mehrtash v. Mehrtash, 93 Cal. App. 4th 75, 80 (Cal. Ct. App. 2001). Rather, ‘injury to the creditor must be shown affirmatively. In other words, prejudice to the plaintiff is essential.’ Id. Injury in this context means ‘the transfer puts beyond [Plaintiff’s] reach property [he] otherwise would be able to subject to the payment of [his] debt.’ Id.”). 

Transferring Homestead With No Equity Beyond an Exception to a Spouse May Not Be a Fraudulent Transfer under California Law

Related to this concept, sometimes, one spouse in a marriage may have a judgment against them or creditors seeking to collect from them. As a result, the spouses may decide to transfer the family home with no equity beyond the homestead exemption to the spouse without creditors. In turn, a creditor may challenge this transfer as a fraud. Thereafter, the spouse receiving the transfer would raise the defense that the transfer was lawful on the basis that the creditor cannot prove any injury as a result of the transfer. As Mehrtash v. Mehrtash, (2001) 93 Cal.App.4th 75, 79–80 explained: “Under some circumstances a creditor may sue to set aside a transfer of property by a debtor, where the transfer defrauds that creditor.” (Civ.Code, § 3439 et seq., the Uniform Fraudulent Transfer Act.) A well-established principle of the law of fraudulent transfers is, ‘A transfer in fraud of creditors may be attacked only by one who is injured thereby.'” Nonetheless, creditors can attack a transmutation as a fraudulent transfer pursuant to Mejia v. Reed.

Consult a Debtor and Creditor Rights Attorney to Understand the Lead on Transfers of Exempt Property

Even an innocent misstep in such a complex area of law can lead to disastrous consequences. Indeed, this blog post describes general principles that may vary in application to your matter. As with any area of law, there is no guarantee that every judge will reach the same conclusion. We highly recommend contacting a California real estate lawyer with experience in creditor’s rights and debtor’s rights to understand how to handle your situation.

Boxing, Soccer, & Sports Piracy (Copyright Infringement) Laws May Not Apply to Internet Apps Like DAZN Used to Show Paid Sporting Events in Businesses There May be No Merit to Lawsuits Filed by Thomas P. Riley on Behalf of G & G Closed Circuit Events, LLC, Innovative Sports Management, Inc. DBA Integrated Sports Media, and ... Read...

Boxing, Soccer, & Sports Piracy (Copyright Infringement) Laws May Not Apply to Internet Apps Like DAZN Used to Show Paid Sporting Events in Businesses

There May be No Merit to Lawsuits Filed by Thomas P. Riley on Behalf of G & G Closed Circuit Events, LLC, Innovative Sports Management, Inc. DBA Integrated Sports Media, and J & J Sports Productions, Inc.

Attorneys like Thomas P. Riley have made a career out of suing small business owners by alleging that they (accidentally) showed a pay-per-view style boxing or soccer match at their establishment (restaurant, barber shop, or other retail outlet) without paying the licensing fee to the boxing promoter. However, the new generation of cases often arises from showing the fights as they appear on streaming apps like DAZN. Some courts have rejected the main legal theories advanced by these attorneys based on the use of the Internet, rather than old fashioned cable or satellite signals.

47 USC Section 605 and 47 USC Section 553 May Not Apply to Alleged Internet Piracy

Considerable authority indicates that 47 U.S.C. section 605 applies to satellite signals and 47 U.S.C. section 553 applies to cable signals. There are literally hundreds of cases that state that rule of law. A few cases include J & J Sports Productions, Inc. v. Man Thi Doan (N.D. Cal. 2008) WL 4911223, and J & J Sports Productions, Inc. v. Steve Sang Ro (2010) U.S. Dist. LEXIS 21425, citing J & J Sports Productions, Inc. v. Manzano (2008) U.S. Dist. LEXIS 84931, which states that “a signal pirate violates section 553 if he intercepts a cable signal, he violates section 605 if he intercepts a satellite broadcast. But he cannot violate both by a single act of interception.”

If a signal is received via the internet (which is neither a satellite TV transmission or a cable TV transmission), it falls outside the coverage of the alleged TV signal piracy statutes. Joe Hand Promotions, Inc. vs. Michael Cusi, et al. 2014 U.S. Dist. LEXIS 66474 at 6-7; see Ark Promotions, Inc. v. Justin.tv, Inc., 904 F.Supp.2d 541, 549. That case addressed that issue head-on and the court granted summary judgment in favor of the defendants for exactly this reason. The court noted that the discovery phase of the case was complete and plaintiff could not produce any evidence to support its claims under 47 USC section 605 or 47 USC section 552. Id. Furthermore, the court went on to state that it had “no confidence” in the assumption that the type of internet service could result in liability under sections 605 and 553, and it was “skeptical that feeds received over the internet from a third party violate sections 553 or 605.” Id. at FN4; see Joe Hand Promotions, Inc. vs. Shelley L. Spain, et al., Case No. 2:15-cv-00152-SMM, Document 39 filed on 8/5/2016. The case of Zuffa, LLC v. Justin.tv, Inc., 838 F.Supp.2d 1102 (D. Nev. 2012) also stands for the proposition that claims for TV signal piracy under 47 U.S.C. section 605 and 47 U.S.C. section 553 do not include circumstances where the defendant acquired the signal via the internet, as does Ark Promotions, Inc. v. Justin.tv, Inc., 904 F.Supp.2d 541, 549 (cited by the court in the Cusi case). This issue was also mentioned in the summary judgment decision in the case of Joe Hand Promotions, Inc. vs. Jacob Evans Albright d/b/a Miners Ranch Saloon, 2013 U.S. Dist. LEXIS 79268 (June 4, 2013 decided in the Eastern Dist. of CA) where the court stated that evidence that the program was received over the internet would be a defense. Id. at *15.

To further bolster the notion that neither 47 U.S.C. section 605 nor 47 U.S.C. section 553 apply to a signal received through the internet is the fact that §605 was drafted in 1934, and §553 was drafted in 1984, at a time when this technology did not even exist. It is inconceivable that the statutory intent would be to cover signals on the internet.

Courts in the Central District of California have repeatedly found that TV signal piracy statutes do not apply to internet signals. For example, see the case of G & G Closed Circuit Events, LLC vs. Catherine Samusick, Case No. 2:18-cv-01796-WDK-JC, Document 29, Filed 5/4/2020, granting defendants’ motion for summary judgment for this same reason. Yet another similar case in which this exact Court granted summary judgment for this same exact reason is the case of J & J Sports Productions, Inc. vs. Jade Thompson, Case No. 5:16-cv-01939-WDK-PLA, Document 59, Filed 9/20/2019.

Many cases involve an allegation that the signal for the fight program in question was received over the internet, meaning there was no cable or satellite signal that was intercepted, received, or exhibited. These apps allowing Internet sports streaming include DAZN, Fubu, ESPN+, and others. In such cases, there should be no case for TV signal piracy.

Contact a Sports and Boxing Piracy Attorney to Understand Your Rights

If you’ve received a letter or lawsuit from Thomas P. Riley or any attorney representing G & G Closed Circuit Events, LLC, Innovative Sports Management, Inc. DBA Integrated Sports Media, or J & J Sports Productions, Inc., contact an experienced business attorney to advise you of your rights. The attorneys at Talkov Law can be reached at (844) 4-TALKOV (825568) or online.

Talkov Law provides business attorneys in Los Angeles, Orange County, San Diego, San Bernardino, Riverside, Palm Springs, Palo Alto, San Jose, Sacramento, Santa Barbara, Redding, Oakland, Long Beach, and surrounding areas.

The skilled business attorneys at Talkov Law practice in the areas of:

• Business Litigation
• Breach of Contract
• Business Fraud
• Partnership Disputes
• Media & First Amendment
• Anti-SLAPP

Bankruptcy Code Section 523(a)(2)(A) Dischargeability Cannot be Based on Oral Fraudulent Misrepresentation “Respecting the Debtor’s Financial Condition” The Supreme Court has held that nondischargeability under Section 523(a)(2)(A) of the Bankruptcy Code for fraudulent misrepresentations “other than a statement respecting the debtor’s or an insider’s financial condition” means that creditors in bankruptcy are barred from claiming ... Read...

Bankruptcy Code Section 523(a)(2)(A) Dischargeability Cannot be Based on Oral Fraudulent Misrepresentation “Respecting the Debtor’s Financial Condition”

The Supreme Court has held that nondischargeability under Section 523(a)(2)(A) of the Bankruptcy Code for fraudulent misrepresentations “other than a statement respecting the debtor’s or an insider’s financial condition” means that creditors in bankruptcy are barred from claiming oral misrepresentations that have “a direct relation to or impact on the debtor’s overall financial status.” Lamar, Archer & Cofrin, LLP v. Appling, 138 S.Ct. 1752, 1755 (2018). This article provides the analysis of our bankruptcy attorneys in California to apply this law to various factual scenarios.

False Statements Respecting the Debtor’s Financial Condition Must be in Writing in Order for the Debt to be Nondischargeable

A discharge in bankruptcy releases a debtor from liability of certain debts. However, some debts, such as fraud, willful and malicious injury, and intentional fraudulent transfers may be exempted from discharge.

Specifically, Section 523(a)(2)(A) of the Bankruptcy Code provides nondischargeability “for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.”

Indeed, if the fraud relates to a “statement respecting the debtor’s or an insider’s financial condition,” the creditor in bankruptcy must proceed under Section 523(a)(2)(B) of the Bankruptcy Code, which provides an exception to discharge for “use of a statement in writing— (i) that is materially false; (ii) respecting the debtor’s or an insider’s financial condition; (iii) on which the creditor to whom the debtor is liable for such money, property, services, or credit reasonably relied; and (iv) that the debtor caused to be made or published with intent to deceive.”

What this means is “that a debtor may not discharge debts for money obtained by false pretenses, false representations, or fraud, except that false statements ‘respecting the debtor’s … financial condition’ must be in writing in order for the debt to be nondischargeable. 11 U.S.C. §§ 523(a)(2)(A), 523(a)(2)(B).” Engler v. Van Steinburg, 744 F.2d 1060 (4th Cir. 1984) (debtor’s oral misrepresentations that he owned the property free and unencumbered related to his financial condition).

Said another way: “It is well-established that subsections 523(a)(2)(A) and (a)(2)(B) are mutually exclusive, and that if a ‘statement respecting the debtor’s or an insider’s financial condition’ is communicated orally, the creditor’s claim will fail and the underlying debt will be discharged.” In re Ransford, 202 B.R. 1, 3 (Bankr. D. Mass. 1996).

What is “a Statement Respecting the Debtor’s or an Insider’s Financial Condition” Under Section 523(a)(2)(A) of the Bankruptcy Code?

Many times, the creditor’s allegation of fraud border on a claim of an oral misrepresentation about the debtor’s financial condition. For example, the debtor may tell a creditor that they are “rich” and will have “no problem paying back a loan.” Of course, that turned out not to be true, since the debtor is in bankruptcy seeking to discharge their debts. So, is that sufficient in bankruptcy court to allege fraud without being excluded as a statement respecting the debtor’s or an insider’s financial condition?

“Where an individual debtor is involved, the definition of ‘insider’ includes a ‘corporation of which the debtor is a director, officer, or person in control.” Blackwell v. Dabney, 702 F.2d 490, 492 (4th Cir. 1983). In Blackwell, statements by a debtor that “convinced [plaintiffs] the business ‘was growing’, that ‘he was very successful’ [and]… [insider] was a ‘top-notch company’ and that ‘they were just blooming’ … that ‘business was going great,’ that the corporation was a ‘very successful company of some young black men and they were doing very, very good.’ And that it was a ‘striving business that was doing well’” were found to be statements “concerning the financial condition of [insider]. Further, all of [debtor’s] statements were oral. [Thus] [t]he representations are therefore outside the scope of 11 U.S.C. § 523(a)(2) and can not be the basis for preventing discharge of the bankrupt.”

As the Ninth Circuit Bankruptcy Appellate Panel (BAP) explained, “the phrase ‘statement respecting the debtor’s … financial condition’” should be interpreted as analogous to those statements “that purport to present a picture of the debtor’s overall financial health.” In re Belice, 461 B.R. 564, 577–578 (B.A.P. 9th Cir. 2011). The BAP went on to provide that: Statements that present a picture of a debtor’s overall financial health include those analogous to balance sheets, income statements, statements of changes in overall financial position, or income and debt statements that present the debtor or insider’s net worth, overall financial health, or equation of assets and liabilities…. What is important is not the formality of the statement, but the information contained within it—information as to the debtor’s or insider’s overall net worth or overall income flow.”

Supreme Court in Lamar, Archer & Cofrin, LLP v. Appling, 138 S.Ct. 1752, 1761 (2018) found that an Oral Misrepresentation is Not Actionable Under Section 523(a)(2)(A) if it “Has a Direct Relation to or Impact on the Debtor’s Overall Financial Status”

In 2018, the United States Supreme Court weighed in on the issue in Lamar, Archer & Cofrin, LLP v. Appling, 138 S.Ct. 1752, 1761 (2018),  finding that “a statement is ‘respecting’ a debtor’s financial condition if it has a direct relation to or impact on the debtor’s overall financial status. A single asset has a direct relation to an impact on aggregate financial condition, so a statement about a single asset bears on a debtor’s overall financial condition and can help indicate whether a debtor is solvent or insolvent, able to repay a given debt or not. Naturally, then, a statement about a single asset can be a “statement respecting the debtor’s financial condition.” Lamar found that: “Had Congress intended § 523(a)(2)(B) to encompass only statements expressing the balance of a debtor’s assets and liabilities, it could have so specified—e.g., ‘statement of the debtor’s financial condition.'”

Oral Statements Respecting an Insider’s Financial Condition Are Also Barred as Fraud Under Section 523(a)(2)(A) of the Bankruptcy Code

Sometimes, the claim of fraud is that the debtor orally misrepresented the financial condition of their company, corporation, limited liability company, other business entity, or business partner. It is important to remember that, under Section 523(a)(2)(A) of the Bankruptcy Code, the exception to discharge is only for “for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.”

“Where an individual debtor is involved, the definition of ‘insider’ includes a ‘corporation of which the debtor is a director, officer, or person in control.” Blackwell v. Dabney, 702 F.2d 490, 492 (4th Cir. 1983). However, the definition of insider is even more broad. Under 11 U.S.C. Section 101(31):

The term “insider” includes—
(A) if the debtor is an individual—
(i) relative of the debtor or of a general partner of the debtor;
(ii) partnership in which the debtor is a general partner;
(iii) general partner of the debtor; or
(iv) corporation of which the debtor is a director, officer, or person in control;
(B) if the debtor is a corporation—
(i) director of the debtor;
(ii) officer of the debtor;
(iii) person in control of the debtor;
(iv) partnership in which the debtor is a general partner;
(v) general partner of the debtor; or
(vi) relative of a general partner, director, officer, or person in control of the debtor;
(C) if the debtor is a partnership—
(i) general partner in the debtor;
(ii) relative of a general partner in, general partner of, or person in control of the debtor;
(iii) partnership in which the debtor is a general partner;
(iv) general partner of the debtor; or
(v) person in control of the debtor;
(D) if the debtor is a municipality, elected official of the debtor or relative of an elected official of the debtor;
(E) affiliate, or insider of an affiliate as if such affiliate were the debtor; and
(F) managing agent of the debtor.

Even if the creditor meets this hurdle, they will need to allege fraud with particularity by alleging the “who, what, when, where, and how” of the alleged misconduct. Indeed, even negligent misrepresentation can form the basis of fraud, which can become a nondischargeable judgment. Note that bankruptcy lien avoidance on exempt property is permissible even for nondischargeable debts [11 USC 522(f)(1) & 523(a)].

Contact a Bankruptcy Nondischargeability Attorney in California Serving Los Angeles, San Jose, San Diego, Orange County, Sacramento, Riverside, and Surrounding Areas of California

Nondischargeability in bankruptcy is a complex and difficult area of law where skilled a knowledgeable bankruptcy attorney with experience in adversary proceedings can guide you through the bankruptcy process from start to finish. If you have a question, contact Talkov Law at (844) 4-TALKOV (825568) or contact us online.

The bankruptcy attorneys at Talkov Law are skilled in the areas of:

• Business Bankruptcy
• Chapter 7 Bankruptcy
• Bankruptcy Adversary Proceedings
• Bankruptcy Nondischargeability
• Involuntary Bankruptcy
• Bankruptcy & Divorce
• Creditor Representation

Talkov Law provides bankruptcy attorneys in Los Angeles, Orange County, San Diego, San Bernardino, Riverside, Palm Springs, Palo Alto, San Jose, Sacramento, Santa Barbara, Redding, Oakland, Long Beach, and surrounding areas.

What Are The Pros and Cons of Virtual Domestic Violence Court Hearings? Are They Dangerous for Abuse Victims or Beneficial for California Family Courts?

New Dangers of Virtual Domestic Violence Court Hearings Exposed When Astute Prosecutor Calls out Alleged Abuser for Tuning into Zoom Hearing from Victim’s Apartment

Judge Middleton interrupted Defendant Harris, “Mr. Harris, I advise, don’t say anything else. Take the cigarette out of your mouth. The hearing is adjourned. Your bond is canceled.”

“This is an issue we didn’t have when we were at live court,” Judge Middleton said. “It’s the first time I ever had anybody sitting in the next room potentially intimidating a witness,” Judge Middleton continued.

Defendant Coby Harris, who was charged as a habitual offender, faces a charge of assault with the intent to create great bodily harm, a felony that carries up to 10 years in prison with an enhanced sentence of up to 15 years in prison.

The video has struck a nerve with domestic violence survivors for how it exposes the complexities of abuse, but it also shines a spotlight on problems arising in this post-pandemic virtual access to justice.

Are Virtual Domestic Violence Court Hearings Unfair for Alleged Abusers Too?

Another sad reality is that baseless requests for domestic violence restraining orders are filed all the time in California family court. Pro per litigants often file a request for a domestic violence restraining order (DVRO) in an attempt to win a custody battle or obtain exclusive possession of a residence based on allegations of conduct which do not amount to abuse under California family law.

It is also not uncommon for a couple to have a fight and break-up, only to reconcile get back together. If a DVRO was filed during that fight/break-up, it could very well be that the hearing occurs after the parties have reconciled. In such a circumstance, the parties may indeed appear at the virtual domestic violence court hearing from the same location.

If we start assuming that any time this occurs the responding party is engaging in intimidation to influence the petitioning party, we are essentially saying that you can never reconcile with your significant other if they have filed a DVRO against you because that will be per se evidence that you are abusive because you are engaging in witness intimidation. We would in effect be shifting the burden of proof from the petitioning party in a DVRO to the responding party.

Are There Benefits to Virtual Domestic Violence Court Hearings?

The benefits of holding these hearings virtually in this regard are very clear. It is more convenient for witnesses to log in to the hearing from home or work and go about their day until it is their turn to testify. A post-it note over the alleged abuser’s face can even make testifying easier.

California’s domestic violence procedures are complex and trying to navigate them without help of a California family lawyer can be frustrating. If you have questions about restraining orders, contact our accomplished and dedicated lawyers by calling (844) 4-TALKOV (825568) or contact us online for a free consultation with our experienced family law attorney, Colleen Sparks, who can guide you through the court process in a prompt and clear manner.

Our family law attorneys serve Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Palm Springs, Palo Alto, San Jose, Sacramento, Santa Barbara, Redding, Oakland, Long Beach, and surrounding areas in California.

• Child Custody and Visitation
  • Move Away and Relocation of Children
  • Child Custody Modifications
  • Grandparent's Rights
• Divorce
  • Property Division
  • Annulment
  • Dissolution of Domestic Partnership
  • Legal Separation
  • Spousal Support
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• Family Law Contempt

Only Agree to a Restraining Order if You Want to Lose Custody of Your Children - Family Code Section 3044.

Why You Should Never Agree to a Restraining Order in California if You Have Kids (Family Code 3044)

When you are served with a Request for Domestic Violence Restraining Order (DVRO), a million thoughts go through your head. Depending on the circumstances, you may have suspected this was coming or you may be completely caught off-guard. You may feel angry, betrayed, confused, or even scared.

After the shock wears off and you start considering what you should do next, you may decide to file a response, hire a restraining order attorney, or just show up at the hearing.

There is no one right answer about how to proceed when you have been served with a DVRO, but there is one thing you should never do: agree to a restraining order.

Family law attorneys are almost universally in favor of parties reaching agreements and settlements. So why would one of us make a blanket statement that you should never agree to something filed against you? Keep reading.

Family Code Section 3044 – Only Agree to a Restraining Order if You Want to Lose Custody of Your Children in California

What would be so bad about a restraining order? I don’t want to see her anyway!

No matter what the outcome of the restraining order is, you probably aren’t going to be best friends with the protected party after the hearing. The prospect of being restrained from seeing or talking to him or her may sound like a relief after all of this! Oftentimes, the protected party does not even request orders relating to child custody in the DVRO, so this has nothing to do with the kids, right? Wrong. If you agree to a restraining order, you are voluntarily triggering the domestic violence finding and presumption of Family Code 3044.

Family Code § 3044(a) provides:

Upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child… there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child, pursuant to Sections 3011 and 3020. This presumption may only be rebutted by a preponderance of the evidence.

A “finding” of domestic violence is made when the restrained party chooses not to oppose the DVRO and agrees to the restraining order.

Under Section 3044, a finding of domestic violence against the other parent carries with it a rebuttable presumption that an award of sole or joint physical or legal custody of a child to the abuser (i.e. the parent who agreed to the restraining order) is detrimental to the best interest of the child.

This is because when it comes to child custody, the public policy of the State of California is to ensure the health, safety, and welfare of children. According to the legislature, it is detrimental to a child if domestic violence is perpetrated in the child’s home.

Family law judges are required to grant reasonable visitation rights to parents unless visitation would not be in the child’s best interests. It is not in a child’s best interests to be exposed to domestic violence, so the court can protect the child by, for example, ordering supervised visitation (meaning a third party must supervise all visits between the child and the restrained parent) or banning overnight visits.

I Would Not Have Agreed to a Restraining Order if I Had Known About the Family Code 3044 Presumption

Essentially, this argument boils down to this: I entered into this agreement based on a mistake of law. Specifically, I did not know about the 3044 presumption, and if I had known about it, I would not have agreed to have a restraining order placed against me.

In fact, the argument that a party responding to a domestic violence restraining order should be entitled to notice of the 3044 presumption at the time of the restraining order hearing is such a great argument that it has made its way up to the California Court of Appeal.

In Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, Ramadan Sabbah challenged the trial court’s denial of both his new trial motion and his application under Code of Civil Procedure § 473(b) for relief from a restraining order against him. He contended, among other things, that the trial court erred by failing to give him notice under Family Code section 3044 that a domestic violence finding against him would adversely affect him in custody determinations.

Ramadan Sabbah argued that Section 3044(f) mandates that parties be informed of the presumption, providing: “In any custody or restraining order proceeding in which a party has alleged that the other party has perpetrated domestic violence in accordance with the terms of this section, the court shall inform the parties of the existence of this section and shall give them a copy of this section prior to any custody mediation in the case.”

Is the California Family Court Required to Inform Parties of the Existence of Section 3044 at the Restraining Order Hearing?

Finding that Section 3044(f) is ambiguous on the issue of the timing of the mandate on the court to inform the parties of existence of Section 3044, the Sabbah court turned to the history of Section 3044(f) and the legislative intent in its enaction.

When Section 3044(f) was discussed by The Senate Judicial Committee on April 21, 2003, the Committee made the following remarks about its purpose: “[C]ustody mediators generally do not tell their clients about the statutory presumption against custody for perpetrators of domestic violence. Since mediation often involves encouraging divorcing parents to agree to joint parenting, the author asserts that ‘many battered victims and their children are not benefiting from the policy behind [the law].’ [¶] Accordingly, this bill would require the court, in any custody or restraining order proceeding in which one parent has alleged that the other has committed domestic violence, to inform the parties about the rebuttable presumption against granting custody to perpetrators of domestic violence, and to provide them with a copy of the applicable statutes before any custody mediation occurs.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 265 (2003–2004 Reg. Sess.) as amended April 21, 2003, pp. 6–7.)

Accordingly, the court made the following finding:

[S]ection 3044(f) requires a court in ‘any custody or restraining order proceeding’ involving domestic violence accusations to provide the statutory notice to the parties before they enter into custody mediation. (Sabbah v. Sabbah (2007) 151 Cal.App.4th 818, 825.)

It logically follows that under the California Family Code, the court is NOT required to provide statutory notice of the 3044 presumption to the parties at the time of the hearing on the restraining order, such notice is only required prior to child custody mediation.

So what does the Sabbah case mean for a respondent in a California domestic violence restraining order case thinking about stipulating to the requested orders? Do not agree to have a restraining order placed against you, there are very serious ramifications and no one is required to tell you about them.

California’s domestic violence laws are complex, but they play an integral role in custody matters. Whether you are the victim of domestic violence, or you have been falsely accused of it, you need a law firm that understands the impact it will have in your case. To talk to a child custody lawyer, call Talkov Law at (844) 4-TALKOV (825568) or contact us online for a free consultation about your case.

Our family law attorneys serve Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Palm Springs, Palo Alto, San Jose, Sacramento, Santa Barbara, Redding, Oakland, Long Beach, and surrounding areas in California.

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  • Move Away and Relocation of Children
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  • Annulment
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  • Spousal Support
• Paternity
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• Restraining Orders
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Complete List of the Most Important Child Custody Laws in California Truth be told, not every California law having to do with child custody regularly comes up in family court. Like any other body of law, California child custody law consists of a handful of highly litigated sections nestled between a whole slew of oft ... Read...

Complete List of the Most Important Child Custody Laws in California

Truth be told, not every California law having to do with child custody regularly comes up in family court. Like any other body of law, California child custody law consists of a handful of highly litigated sections nestled between a whole slew of oft forgotten, rarely disputed rules and codes.

Going through all of California child custody jurisprudence to learn what you need to know isn’t feasible for most litigants in a custody battle, but it is important to know which rules and code sections regularly come up in family court if you are engaged in a custody battle or think you may be soon. Here is a complete list of the most important child custody laws in California.

Checklist of California Family Code Sections and Rules You Need to Know About Before Your Custody Hearing in Family Court

• Joint Custody Defined – Family Code § 3002

The general term “joint custody” means both legal and physical custody.

• Joint Legal Custody Defined – Family Code § 3003

Joint legal custody means that both parents have an equal right to make important parental decisions.

• Joint Physical Custody Defined – Family Code § 3004

Joint physical custody means that both parents have significant periods of physical custody. This section also mandates orders for joint physical custody to provide a child with frequent and continuing contact with both parents.

• Sole Legal Custody Defined – Family Code § 3006

Sole legal custody means that one parent has the right to make decisions concerning the child’s health, education, and welfare without consulting the other parent or obtaining their prior agreement.

• Sole Physical Custody Defined – Family Code § 3007

Sole physical custody means that the child resides with one parent, and visits the other parent.

• Parents are Equally Entitled to Child Custody – Family Code § 3010

Without court orders saying otherwise, both legal parents are equally entitled to custody of their child. See Family Code § 7611 for information regarding father’s rights and presumed fathers.

• Best Interests of the Child Standard – Family Code § 3011

This section is the starting analysis for any custody dispute.

• Children Have the Right to be Safe and Free From Abuse – Family Code § 3020

Another highly litigated custody statute, Section 3020 states the fundamental policy of the law to ensure that children have frequent and continuing contact with both parents after the parents have ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing.

• Statement of Reasons for Custody Decision – Family Code § 3022.3

An often ignored provision by child custody lawyers and self-represented parties, following a trial to determine the custody of a child, either parent can request the court issue a statement of decision explaining the factual and legal basis for its decision.

• Notice to Other Parent of Relocation of Child – Family Code § 3024

This a standard provision in most custody mediation recommendations, and should be included in any child custody stipulation.

• Parental Access to Medical and School Records – Family Code § 3025

Parents cannot be denied access to a child’s medical, dental, and school records because they do not have custody of their child.

• Allegations of Child Abuse – Family Code § 3027

Section 3027 empowers courts to make orders to protect children where abuse is alleged, and to cause an investigation to be undertaken by welfare service (not evaluator).

• Sanctions for False Allegations of Abuse – Family Code § 3027.1

If a court determines, based on the investigation described in Section 3027 or other evidence presented to it, that an accusation of child abuse or neglect made during a child custody proceeding is false and the person making the accusation knew it to be false at the time it was made, the court may impose reasonable money sanctions.

• Order of Preference for Child Custody – Family Code § 3040

Section 3040 provides the order of preference for custody of children: first to parents, and second to qualified third-parties.

• Custody of Children to Non-Parents – Family Code § 3041

Section 3041 provides that before making an order granting custody to a nonparent, over the objection of a parent, the court must make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child, by clear and convincing evidence. Section 3041 is most commonly invoked by adult siblings and grandparents, but it could include any unrelated person.

• Orders for Drug Testing – Family Code § 3041.5

Family Code section 3041.5 sets forth when a family court can order drug testing.

• Preference of Child in Custody Dispute – Family Code § 3042

This is a critical statute that provides a child has a right to speak to the court under certain circumstances and authorizes courts to hear directly from a child in certain situations.

• Rules for Child Testimony Regarding Parental Preference – California Rules of Court, Rule 5.250

This rule sets forth the procedures and restrictions on how the court can hear and admit the testimony of a child in a custody case.

• Presumptions Against Custody for Domestic Violence Perpetrator – Family Code § 3044

Family Code section 3044 creates a presumption that a parent who has committed domestic violence within the last 5 years should not have joint or sole legal or physical custody of a child, and that such custody would be detrimental to child.

• Temporary Custody and Right to Hearing Within 20 Days – Family Code § 3062

This section empowers courts to issue and/or extend emergency or ex parte, temporary custody orders in limited situations.

• Limits on Ex Parte Change of Custody Orders – Family Code § 3064

Courts are not supposed to make ex parte orders modifying custody except when there is evidence of immediate harm to a child, or that the child will be removed from the State.

• Presumption When Parents Agree to Joint Custody Orders – Family Code § 3080

There is a presumption that joint custody is in the best interests of a child where the parents have agreed to joint custody in open court.

• Stepparent Visitation – Family Code § 3101

This section provides that the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is in the best interest of the child.

• Grandparent Visitation Orders – Family Code § 3103

This section provides that the court may grant reasonable visitation to a grandparent of a child of a party to the proceeding if visitation by the grandparent is in the best interest of the child.

• Child Custody Evaluation Reports – Family Code § 3111

Family Code section 3111 empowers courts to appoint a person to conduct a limited or general child custody evaluation which is then reported back to the court, and to the parties.

• Appointment of Minor’s Counsel – Family Code § 3150

Section 3150 authorizes courts to appoint private counsel to represent the interests of the child in a custody.

• Separate Custody Counseling Where History of DV or Abuse – Family Code § 3192

A parent who has been the victim of domestic violence by the other parent may meet separately with the child custody mediator.

• California UCCJEA – Family Code § 3402

The UCCJEA is the Uniform Child Custody Jurisdiction Enforcement Act. It is intended to prevent inconsistent orders in different states and to resolve the question of which state should have jurisdiction over the parents and children.

• California Temporary Emergency Jurisdiction under UCCJEA – Family Code § 3424

California courts can assert emergency jurisdiction over parents and children prior to the ultimate UCCJEA issues being resolved.

• Right of Parent to Change Residence of Child (Move-Away) – Family Code § 7501

This is the basic rule that came out of the case In re Marriage of Burgess (1996) 13 Cal.4th 25. This section creates a presumption that parents are entitled to change the residence of a child where such relocation will not prejudice the rights of the other parent or the welfare of the child.

• No Ex Parte Communication with Child Custody Evaluators – California Rules of Court, Rule 5.235

This rule prohibits ex parte communication between lawyers, or parties, with custody evaluators.

An experienced family law attorney at Talkov Law has the knowledge to help you reach a resolution of your custody and visitation legal issues. Whether reaching a child custody agreement is your goal, or you want a knowledgeable child custody lawyer to fight for you, contact the attorneys at Talkov Law for help.

Our family law attorneys serve Los Angeles, Orange County, San Diego, Riverside, San Bernardino, Palm Springs, Palo Alto, San Jose, and surrounding areas in California.

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