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COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOR THE FOURTH APPELLATE DISTRICT

DIVISION THREE

In re marriage of )
) Case No.: G054882
)
DONNA McCRACKEN-DOBSON )
)
Plaintiff and Appellant )
) Sup. Ct. Case No. 12D011605
v. )
)
ROBERT DOBSON )
)
Defendant and Respondent )
)

Appeal from the Superior Court, County of Orange


Honorable DavidS. Weinberg, Judge Presiding (Retired)

APPELLANT'S OPENING BRIEF

Keith E. Dolnick, Esq. (SB No. 189016)


2 Park Plaza, Suite 650
Irvine, CA 92614
(949) 222-0426
(949) 222-9903 - Fax
Attorneys for Appellant
TABLE OF CONTENTS
Page
Introduction.................................................................................... 1

Standard of Review........................................................................ 1

Statement of the Case..................................................................... 3

Legal Argument.............................................................................. 7

1. The Trial Court Erred by Continuing with Trial


Despite Donna's Inability to Participate in the 730
Update Review and Trial.......................................... 7

2. The Decision of the Trial Comi to Proceed to Trial


Notwithstanding Donna's Pending Contempt Trial
was Extremely Prejudicial to Her Charles Should
be Precluded from Raising Objections................... 14

Conclusion................................................................................... 17

Certificate of Word Count .......................... ............... .......... ....... 18

Proof of Service........................................................................... 19
TABLE OF AUTHORITIES
Cases Page(s)

Crocker Nat. Bank v. San Francisco (1989)


(1989) 49 Cal.3d 881, 888.............................................. 2

Hernandez v. Superior Court


(2004) 115 Cal.App.4th 1242, 1246-124.................. 11, 13, 14

In reMarriage ofHoffmeister
(1984) 161 Cal.App.3d 1163, 1169.................................. 9

McGhan v. Superior Court


(1992) 11 Cal.App.4th 804, 810-811............................... 2

Oliveros v. Superior Court


(2004) 120 Cal.App. 4111 1389, 1395.................... 9, 10, 11, 12

In reMarriage ofSullivan
(1984) 37 Cal.3d 762, 769............................................... 3

11
INTRODUCTION

This appeal arises out of a marital dissolution case. It addresses

the denial of a litigant's fundamental right to participate in a trial,

arising from the trial court's refusal to continue trial notwithstanding

the pro-per Appellant's right to self-incrimination.

Appellant, Donna McCracken-Dobson (hereinafter "Donna") 1,

appeals to the Court of Appeal of the State of California, Fourth

Appellate District, Division Three from the trial court's January 6,

2017 denying her request to continue the trial.

STANDARD OF REVIEW

The predominant issue presented by this appeal is whether the

trial on the Order to Show Cause and Affidavit for Contempt filed by

Respondent Robert Dobson (hereinafter "Robert") and set for trial on

January 19, 2017 prior to the trial on reserved issues set for January 6,

2017 required a further continuance of the trial as opposed to the

court's discretion to proceed without Donna being present or

represented. (C.T. 21-283) This question presents issues of due

process and fundamental rights. It thus calls for a critical

The first names of the parties is used for clarity since they share the same last
name.
consideration, in a factual context, of legal principles, and their

underlying values. In such a case "the question is predominantly legal

and its determination is reviewed independently." Crocker Nat. Bank

v. San Francisco (1989) 49 Cal.3d 881, 888. Furthermore, when

application of the rule of law to the facts is not one necessarily better

made by the trial court than by an appellate court, a mixed questions

of law and fact is reviewed de novo. This is especially so when the

ultimate conclusion relates to the "values that animate legal

principles" and to the "concerns of judicial administration." McGhan

v. Superior Court (1992) 11 Cal.App.4th 804, 810-811.

However, even if this Court determines that the issue was one

of simple courtroom procedure and within the discretion of the trial

court, for the reasons discussed below the trial court abused its

discretion in failing to continue trial when notified of Donna's

upcoming contempt trial. Indeed, controlling authority establishes

that the court's decision was an abuse of discretion "as a matter of

law."

Donna concedes the standard of review in this matter is abuse of

discretion. That, of course means the trial court's decision may be

2
"overturned only if, considering all of the evidence viewed most

favorably is support of the order, no judge could reasonably make the

order made... (In reMarriage ofSullivan (1984) 37 Cal.3d 762, 769.)

STATEMENT OF THE CASE

A trial on reserved issues for custody and visitation was set for

October 25, 2016. On October 3, 2016, the court appointed expert,

Duke Bussey, Ph.D., sent an email to Donna and to Robert's attorney,

Thomas Tuttle.2 (A.E. Exhibit 4, page 000010) The email requested a

continuance of the hearing date of October 25, 2016 for 60 days from

the October date. Dr. Bussey based the continuance due to Robert's

unavailability for approximately 30 days in July and August. Dr.

Bussey also wrote and email to the court regarding the scheduling

issue. (A.E. Exhibit 4, page 00001 0)

The court on October 13, 2016, sent an email to Dr. Bussey and

copied Donna and Mr. Tuttle. (A.E. Exhibit 4, page 000009) The

court provided three dates in December 2016 that it had available for

resetting the trial.

2
The reference of"A.E." refers to the Appendix of Exhibits in Support of
Appellant's Motion to Augment Record on Appeal.

3
On October 13, 2016, Dmma sent an email that she was not

available on the dates provided by the court but available on either

January 4, 5 or 6, 2017. (A.E. Exhibit 4, page 000008)

On October 14, 2016, a Minute Order was issued by the com1

continuing trial to January 6, 2017 and requesting Donna schedule a

time with Dr. Bussey for review of the updated EC 730 report. (A.E.

Exhibit 4, page 000006) There was no mention by the court for

Robe11 to schedule a time with Dr. Bussey.

Robert filed an Order to Show Cause and Affidavit for

Contempt against Donna on July 6, 2016. (C.T. 21-283) Trial was set

for October 7, 2016 and continued to November 18, 2016. (C.T. 294-

297) On November 18, 2016 the trial was continued to January 13,

2017 due to the court's unavailability. (C.T. 298) Due to time

constraints the com1 the matter was continued to January 19, 2017.

(C.T. 299)
'
On January 19, 2017, Donna and Robert entered into a

Stipulation and Order on the contempt issue and a plea agreement was

reached. (C.T. 301-303)

4
Dr. Bussey informed the court on November 28, 2017 by email

that he had received a letter from attorney, Keith E. Dolnick, on behalf

of Donna that was copied to Mr. Tuttle. Dr. Bussey informed the

court that prior to the Minute Order on October 14, 2016, he had

received the letter on October 10, 2016, and it represented Donna

would participate in the 730 Review upon the contempt action

finishing because of Donna's 5'11 Amendment right. Dr. Bussey

informed the court the trial on the contempt was set to be heard after

January 6, 2017 and asked for the court's direction as to whether

prepare the 730 review report now in advance of the January 6, 2017

date or until sometime after the continued contempt hearing. Dr.

Bussey also represented in his email that Donna had not participated

in the updated review to date. (A.E. Exhibit 3, page 000004-000005)

Acting as her own attorney, Donna emailed Mr. Tuttle and the

court on January 5, 20 I 7 that she would move the court by ex pat1e on

January 6, 2017 for a motion to stay all proceedings pending the

outcome of the contempt proceedings. (A.E. Exhibit 1, page 00000 1)

On January 6, 2017, Donna emailed the court and Mr. Tuttle

her declaration requesting a stay of all the proceedings pending the

5
outcome of the contempt proceedings. (A.E. Exhibit 2, pages 000002-

000003)

On January 6, 2017, the court acknowledged receiving the

email notice from Donna and her declaration. (A.E. Exhibit 5, page

000016, lines 19-23 and line 25, and page 000017, lines 1-25, and

page 000018, lines 1-2) Despite the email from Dr. Bussey on

November 28, 2016 and the declaration from Donna on January 6,

2017, the court proceeded with the trial knowing she was unable to

participate in the 730 review update and the trial due to the pending

contempt action filed by Robeti.

The court accommodated a continuance due to Robert's

unavailability to participate in the 730 update for 30 days in July and

August (presumably for vacation) but could not do the same for

Donna when she had a pending trial (criminal in nature) that

precluded her from participating.

The trial was not postponed but went on with Donna not being

present and having no representation. The comi adopted Robert's

unopposed evidence. (C.T. 306-314) (A.E. Exhibit 5, Transcript of

Custody Trial, pages 000012-000124)

6
The trial court, whatever its concerns for efficiency and

whatever its desires to terminate the case, abused its discretion by

proceeding in Donna's absence knowing that she could not participate

and knowing she had a pending contempt trial.

LEGAL ARGUMENT

1. The Trial Court Erred by Continuing with Trial Despite

Donna's Inability to Participate in the 730 Update Review

and Trial.

Donna was left in a no win position. It is undisputed that

Robert filed the contempt action against her. (C.T. 2 1-283)

When trial commenced on January 6, 20 17, Donna voluntarily

absented herself from the proceeding due to her inability to participate

with a contempt trial pending. Although the court granted an

accmmnodation to Robert for not being unavailable for 30 days in

July and August 2017 to participate in the 730 review update without

explaining why he was unavailable, it refused to give the same

accommodation to Donna knowing she had to deal with the contempt

matter.

7
39 days prior to the scheduled commencement of the trial on

January 6, 2017, Dr. Bussey the court's expert emailed the court

looking for direction and asking the court if the trial should be

continued until after the contempt action was completed. (A.E.

Exhibit 3, page 000004-000005) Dr. Bussey informed the court of

Donna's unavailability to participate until the contempt was

completed and the court ignored this fact and ordered him to finish the

730 update review knowing Donna was not participating.

Donna submitted a declaration by email to the court on

January 6, 2017 requesting a stay of the proceeding until after the

contempt was completed. (A.E. Exhibit 2, pages 000002-000003)

The evidence is unrefuted that when the court determined to proceed

with trial on January 6, 2017 it had previously given an

accommodation to Robet1 despite having no valid reason for his

unavailability to participate in the 730 update review. It is also

unrefuted that the court had a valid reason for continuing the trial on

January 6, 2017 due to the pending contempt trial against Donna but

penalized her and rewarded Robert for his filing of the contempt and

causing Donna's absence.

8
The evidence is undisputed that the court did not halt the trial,

and it was not until several days later that Donna learned of this fact,

after the trial was concluded.

It is true that, normally the question of whether or not a trial

should be continued lies in the sound discretion of the trial court.

Oliveros v. Superior Court (2004) 120 Cal.App. 4th 1389,1395.

However, " ' [t]he trial judge must exercise his [or her] discretion with

due regard to all interests involved, and the refusal of a continuance

which has the practical effect of denying the applicant a fair hearing is

reversible error. [Citations.]' "ld., citing In reMarriage of

Hoffmeister (1984) 161 Cal.App.3d 1163,1169.

In Oliveros after the defendant's original attorney retired, his

partner stepped into the case and expended substantial time reviewing

the records, deposition transcripts, and meeting with witnesses. Trial

was continued from January 15,2002 to March 5, 2002. Then,

because of a conflicting trial in which defendant's counsel was

involved, trial was continued again to July 9, 2002. However, another

trial in which he was involved, but which had been expected not to

proceed, commenced. The Oliveros matter was continued to July 15

9
for the purpose of allowing a writ to be taken to the Comi of Appeal.

However, by July 15 the Court of Appeal had not ruled and the trial

comi went forward with the trial, in the absence of the defendant or

the defendant's counsel, just as in the case at bar. On appeal, it was

determined that the trial court had abused its discretion in refusing to

continue the case.

"Judges are faced with opposing responsibilities when

continuances ... are sought. On the one hand, they are mandated by the

Trial Court Delay Reduction Act (Gov. Code §68600 et seq.) to

actively assume and maintain control over the pace of litigation. On

the other hand, they must abide by the guiding principle of deciding

cases on their merits rather than on procedural deficiencies." Oliveros,

supra, 120 Cal.App.4th at 1395, citations omitted.

"But efficiency is not an end in itself. Delay reduction and

calendar management are required for a purpose: to promote the just

resolution of cases on their merits. [Citations.] Accordingly, decisions

about whether to grant a continuance or extend discovery 'must be

made in an atmosphere of substantial justice. When the two policies

collide head-on, the strong public policy favoring disposition on the

10
merits outweighs the competing policy favoring judicial efficiency.'

[Citation.] What is required is balance. 'While it is true that a trial

judge must have control of the courtroom and its calendar and must

have discretion to deny a request for a continuance where there is no

good cause for granting one, it is equally true that, absent [a lack of

diligence or other abusive] circumstances which are not present in this

case, a request for a continuance supported by a showing of good

cause usually ought to be granted.' " Hernandez v. Superior Court

(2004) 115 Cal.App.4th 1242, 1246-1247, citations omitted, emphasis

added.

The trial comt's decision in the case at bar missed the balance

referred to in Hernandez v. Superior Court by such a wide margin that

it also must be considered an abuse of discretion.

The Comt of Appeal in Oliveros, supra, noted that several

recent cases involving denials of continuances had involved the death

of counsel. The Oliveros comt noted that while the death of trial

counsel cannot be compared to a lawyer's absence due to a scheduling

conflict, the two situations lead to the same legal result: a lack of legal

representation in comt. 120 Cal.App.4th at 1398.

11
In the case at bar, Donna was in propria persona. She was

unable to participate in the trial on reserved issues unless she waived

her 5111 Amendment rights. The refusal of the trial court to grant a

continuance led to the same result decried by the Court of Appeal in

Oliveros: an utter lack of legal representation in comi.

In the case at bar, the court had been aware of Donna's dilemma.

The court was advised by its own expert, Dr. Bussey and Donna on

numerous times. (A.E. Exhibit 3, page 000004-000005) (A.E. Exhibit

2, pages 000002-000003)

In the case at bar, the trial court's refusal to continue the trial

despite the pending contempt action initiated by Robert, and to allow

him to proceed to present his evidence unopposed and to enter

judgment based thereon "was tantamount to a terminating sanction."

Oliveros v. County ofLos Angeles, supra, 120 Cal.App.4th at 1399.

As the Oliveros court noted, an order that prevents a party from

presenting his or her case on the merits is a drastic measure and

should occur only "when there has been previous noncompliance with

a rule or order and it appears a less severe sanction would not be

effective." 120 Cal.App.4th at 1399.

12
Here, there is no evidence the trial court was frustrated with the

number of times the parties had been before it. Robert did not claim

he had been hampered in preparing for trial. Robert was suffering no

financial hardship as a result of the delay of trial other than the added

cost of his attorney having to prepare more than once. However,

assuming that a sanction is appropriate for delay caused by a pending

trial on a contempt action filed by Robert, that damage can be rectified

by a monetary sanction which is much less punitive than what is, in

effect, a terminating sanction.

Finding that the strong public policy favoring disposition on the

merits outweighed the competing policy favoring judicial efficiency,

the appellate court issued a peremptory writ of mandate directing the

trial court to vacate its order of October 17 and to enter new orders

continuing the trial to a date after June 1, permitting the party to

supplement its designation of expert witnesses and extending the

discovery cut-off. The appellate comi found that the trial court had

failed to appreciate how the prior counsel's medical condition had

adversely impacted trial preparations. Hernandez, supra, 1 15

Cal.App.4th at p. 1247.

13
In the case at bar, Donna did not suffer from a serious illness.

What Donna suffered from was an inability to participate due to

Robert's filing a contempt action against her. The decision to

continue with trial in her absence, especially considering that she was

unrepresented by legal counsel, constitutes an abuse of discretion as a

matter of law, just as in Hernandez.

In the case at bar, Donna, who was in the position of

representing herself, also was not in any position to proceed to trial on

January 6. Even if she had finished the contempt action prior to

January 6, 2017, she had not participated in the 730 update review.

2. The Decision of the Trial Court to Proceed to Trial

Notwithstanding Donna's Pending Contempt Trial was

Extremely Prejudicial to Her.

Robert will argue that even if Donna had been allowed time to

participate in the 730 update review and trial was continued to a date

after the contempt proceeding, and to proceed with her case, that he

would still have prevailed on all issues. But that argument is akin to a

criminal prosecutor arguing that there is no need for a reversal when

defense evidence was illegally suppressed, because the prosecutor's

14
evidence is stronger than the defense's. That is for the trier of fact to

determine. And the trier of fact can make no determination until the

evidence is presented, and the witnesses on both sides are heard.

One can sympathize with the trial judge in this case, who was

faced with a pro-per litigant who did not recognize all of the

procedural niceties of litigation, who inte1jected lines of argument

irrelevant to certain proceedings, who perhaps sought inappropriate ex

parte relief upon occasion, and who had attempted to disqualify the

court. One can also sympathize with the trial judge's desire to

conclude a case as promptly as possible.

But the reality is that trial was set for October 25, 2016 and did

not stmt until January 6, 20 17.

The original trial date of October 25, 2016 was continued to

January 6, 2017 because Robert did not participate in the 730 update

review for unknown reasons. (A.E. Exhibit 4, page 000010) When

Robe1t made Donna unavailable to pmticipate in the 730 update

review as a result of the contempt action he filed, the court should

have afforded her the same courtesy. Nobody knows why Robert was

unavailable for 30 days in July and August 20 16 to participate in the

15
730 update review. Everyone knows why Donna was unable to

participate in the trial on January 6, 2017 and the 730 update review.

Trial was rescheduled from October 25, 2016, and to

January 6, 20 17. (A.E. Exhibit 4, page 000006) Unfortunately, it is

not unusual in California for a trial to be postponed for six or seven

months, even if the parties do not have other pending hearings

precluding participation.

And given the undisputed fact of Donna's pending contempt

action in the case at bar, which is unrefuted and established not only

by the pleadings but Dr. Bussey's email to the court, it was an abuse

of discretion for the trial court to proceed to trial.

The court's attempt to justify its actions by acknowledging the

declaration from Donna but noting her absence cannot be a basis for

denying a party a right to a continuance occasioned by an action of the

other party (i.e. Robert's filing of the contempt action).

Therefore, this Court should reverse the Judgment on Reserved

Issues and the trial coutt's denial of Donna's request to continue the

trial, and remand the matter for a new trial and allow her participation

in the 730 update review.

16
CONCLUSION

For the foregoing reasons, Appellant Donna McCracken-

Dobson respectfully requests the Judgment on Reserved Issues filed

on February 16, 2017 from the trial on January 6, 2017 be reversed

and remanded back to the trial court for her to patiicipate in the 730

updated review and a new trial, that she be awarded her fees and costs

on appeal, and be granted such further relief as this court deems just

and proper.

Dated: November 6, 2017 �c ll:b tfu mitted,

-
Keith E. Dolnick, Esq.
Attorney for Appellant
Donna McCracken-Dobson

17
CERTIFICATE OF WORD COUNT

(Pursuant to California Rules ofCourt, Rule 8. 204(c)(l))

I am informed by the clerical staff who prepared this brief on

the computer that the text of this brief is produced in Times New

Roman type and consists of 3,222 words as counted by the Corel

WordPerfect Version X6 word processing program used to generate

this brief.

Dated: November 6, 2017 espectfully submitted,

.--(· 1/-
�- -----. .-
Keith E. Dolnick, Esq.
Attorney for Appellant
Donna McCracken-Dobson

18
PROOF OF SERVICE

I am employed in the County of Orange, State of California. I


am over the age of 18 and not a party of the within action; my
business is 2 Park Plaza, Suite 650, Irvine, California 92614.

On November 6, 20 17, I served the attached APPELLANT'S


OPENING BRIEF by placing a true copy thereof enclosed in sealed
envelope with postage thereon fully prepaid, in the United States mail
at Placentia, California, addressed as follows:

Thomas W. Tuttle, Esq.


Seastrom, Seastrom & Tuttle
4695 MacArthur Court, Suite 1450
Newport Beach, California 92660

Marc J. Poster, Esq.


Greines, Martin, Stein & Richland
5900 Wilshire Boulevard, 12'11 Floor
Los Angeles, California 90036

Honorable Lon Hurwitz


Orange County Superior Court
341 The City Drive, Department L66
Orange, California 92868

Commissioner David S. Weinberg (Retired)


Private Dispute Resolution Services
20 Corporate Park, Suite 300
Irvine, California 92606

I declare under penalty of perjw-y under the laws of the State of


California that the above is true and correct and that this declaration
was executed on November 6, 20 7, at Placentia, California.

Keith E. Dolnick

19
PROOF OF
STATE OF CALIFORNIA
Court of Appeal, Fourth Appellate District Division 3 SERVICE

(Court of Appeal)
Case Name: McCracken-Dobson v.
Dobson
Court of Appeal Case Number: G054882
Superior Court Case Number: 12D011605

At the time of service I was at least 18 years of age and not a party to this legal
1.
action.

2. My email address used to e-serve: dolnicklaw@aol.com

3. I served by email a copy of the following document(s) indicated below:

Title(s) of papers e-served:


Filing Type Document Title
BRIEF - APPELLANT’S OPENING BRIEF Appellants Opening Brief
DATE
PERSON SERVED EMAIL ADDRESS Type /
TIME
Anita Cole acole@gmsr.com e- 11-08-
Greines Martin Stein & Richland LLP Service 2017
3:55:01
PM
Keith Dolnick dolnicklaw@aol.com e- 11-08-
Law Offices of Keith E. Dolnick, A.P.C. Service 2017
189016 3:55:01
PM
Keith Dolnick dolnicklaw@aol.com e- 11-08-
Law Offices of Keith E. Dolnick, A.P.C. Service 2017
189016 3:55:01
PM
Marc Poster mposter@gmsr.com e- 11-08-
Greines Martin Stein & Richland LLP Service 2017
48493 3:55:01
PM
Marc Poster mposter@gmsr.com e- 11-08-
Greines Martin Stein & Richland Service 2017
00048493 3:55:01
PM
Thomas Tuttle ttuttle@seastromlaw.com e- 11-08-
Seastrom & Seastrom Service 2017
00192230 3:55:01
PM

This proof of service was automatically created, submitted and signed on my behalf
through my agreements with TrueFiling and its contents are true to the best of my
information, knowledge, and belief.

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.

--
Date

/s/Keith Dolnick
Signature

Dolnick, Keith (189016)


Last Name, First Name (PNum)

Law Offices of Keith E. Dolnick, A.P.C.


Law Firm