The Motion for Judgment – A Powerful and Under Utilized Tool in Family Law Proceedings:

Most family law hearings or trials are drawn out, with each party presenting evidence in support of his or her position or in opposition to the other party’s evidence on various issues before the trier of fact (judicial officer). Then comes closing arguments and if you are lucky, the trier of fact (or judicial officer) will make findings at the conclusion of the hearing or trial. If you are not so lucky, the process may take even longer if the Court takes the matter under submission and rules via minute order (more wait time). However, there is a process that may work for most family law hearings and/or trials. This procedure may work best where the Court takes matters on an “issue by issue” basis, meaning the Court hears evidence on one issue and then proceeds to the next issue, although the procedure we are about to reference isn’t limited to “issue by issue” proceedings (its just easier in those scenarios). The procedure to quickly and effectively get a ruling on issues where the other side has “rested” or submitted or presented all of his or her evidence on a particular issue, but has failed to meet his or her burden of proof, is known as a motion for judgment pursuant to the California Code of Civil Procedure (“C.C.P.”) Section 631.8. That section provides as follows:

(a)After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment.  The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence.  The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party.  Such motion may also be made and granted as to any cross-complaint.

(b)If it appears that the evidence presented supports the granting of the motion as to some but not all the issues involved in the action, the court shall grant the motion as to those issues and the action shall proceed as to the issues remaining.  Despite the granting of such a motion, no final judgment shall be entered prior to the termination of the action, but the final judgment in such action shall, in addition to any matters determined in the trial, award judgment as determined by the motion herein provided for.

(c)If the motion is granted, unless the court in its order for judgment otherwise specifies, such judgment operates as an adjudication upon the merits.

This procedure may save countless hours at a hearing or trial, not to mention potentially saving your client from having to take the stand again on those same issues (assuming the other side has already questioned him or her). It effectively cuts down the process by having a judgment granted as to those issue(s) wherein the other party has failed to meet his or her burden of proof at the conclusion of his or her case-in-chief on that particular issue. By way of example, in one case, Wife was claiming a reimbursement for what she alleged to be her separate property down payment towards the acquisition of a community property residence (known as a Family Code Section 2640 right of reimbursement). Wife presented her evidence on that claim and then she was questioned during cross-examination (and impeached multiple times). At the conclusion of Wife’s presentation of evidence on that issue, Husband moved for a motion for Judgment under C.C.P. Section 631.8 and it was granted, with the Court making specific findings. What that process accomplished was that Husband was not required to put forth his evidence on that issue. It only required great cross-examination and strategy to weaken Wife’s evidence during her case-in-chief. In fact, Wife made a total of 5 additional claims (where she claimed that she was entitled to one form of relief or another) and after cross-examination, she rested on each issue and Husband made 5 additional motions for judgment (after each issue was presented) and they were all granted. Talk about an effective way to shave down trial time and to not further expose your client to the added stress of additional testimony, not to mention that the risk for a mistrial is greatly reduced (if not completely gone) on issues wherein the Court already issued its ruling for Judgment pursuant to C.C.P. 631.8. What cannot be emphasized enough is that this procedure requires strong cross-examination (and potential impeachment evidence that undermines the other side’s evidence), but if utilized properly, it is a powerful and effective tool that all family law litigators should utilize when and if appropriate in their hearings or trials.