Metropolitan News-Enterprise


Thursday, October 14, 2004


Page 1


High Court to Review Ruling on Support of ‘Disposable Spouse’


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court agreed yesterday to decide whether a two-year-old state law barring enforcement of a premarital spousal support waiver  that “shocks the conscience” can be applied in the case of a woman whose husband sought a divorce after she was severely injured in an automobile accident.

Justices, at their weekly conference in San Francisco, voted unanimously to review the June 28 ruling of the Fourth District Court of Appeal, Div. Three, in In re Marriage of Rosendale, G031925.

Warren Rosendale sought review after the Court of Appeal panel accepted Carol Rosendale’s argument that it was “unconscionable to treat her as a ‘disposable spouse’ — to cast her off without spousal support once she has been damaged.”

Carol Rosendale suffered brain damage, internal injuries, and numerous broken bones in the 1997 crash. She was at one point pronounced dead, and has undergone some 15 reconstructive surgeries, with more scheduled.

Mental Impairment

Writing for the Court of Appeal, Justice Eileen C. Moore noted that Rosendale’s impaired mental functioning was obvious to an Orange Superior Court judge who cited it in denying a request by her husband for attorney fees.

Rosendale sought reconsideration after the trial judge, having bifurcated the issue of the validity of the premarital agreement, found it to be valid. She cited Family Code Sec. 1612(c), enacted after the couple’s agreement, which provides that a premarital waiver of spousal support will not be enforced if it is unconscionable at the time enforcement is sought.

But Moore said Sec. 1612(c), enacted in 2001, was a codification of existing common law. It was therefore not necessary, she explained, to address the question of its effect on agreements already in place at the time it went into effect.

“A court will not enforce a premarital waiver of spousal support, whether the premarital agreement is executed before or after the effective date of Family Code section 1612, subdivision (c), if at the time of enforcement it would be unconscionable to do so,” she declared.

The trial judge erred in ordering enforcement of the provision without considering the issue of unconscionability, Moore said.

Case Cited

The justice cited Wright v. Wright (1957) 148 Cal.App.2d 257, in which a property settlement agreement was found to be unenforceable as unconscionable when the wife—a longtime tuberculosis sufferer—learned shortly after agreeing to it that her illness was likely to become incapacitating.

Settlement agreements are more favored under the law than premarital agreements, Moore reasoned.

“So, since the spousal support provision contained in the property settlement agreement at issue in Wright...was held unconscionable, a fortiori the spousal support waiver found in the premarital agreement that Carol...signed may be held unconscionable....Carol had no reason to foresee the occurrence of a debilitating automobile accident some eight years after signing the agreement. The wife in Wright had far more reason to anticipate the return of her tuberculosis than Carol had to anticipate the horrendous turn of events in her life.”

The rule followed in Wright is also consistent with other Family Code provisions, Moore said.

In other action at yesterday’s conference, the justices:

•Agreed to decide whether the Santa Barbara Superior Court must take remedial measures to cure the underrepresentation of Hispanics on its juries.

This district’s Court of Appeal, in its June 15 ruling in Blair v. Superior Court (People), B171673, rejected Superior Court Judge Frank J. Ochoa Jr.’s finding that his court was systematically excluding Hispanic jurors.

Ochoa was wrong to base a finding of systematic exclusion on a comparative, rather than an absolute, disparity in representation, Presiding Justice Arthur Gilbert of Div. Six said. The absolute disparity is obtained by subtracting the percentage of Hispanics in the venire from the percentage in the population, while the comparative disparity is the percentage by which the number of Hispanic venire members falls short of the expected number.

Ochoa conducted a hearing after a Hispanic murder defendant, Benjamin Ballesteros, challenged the venire. A declaration by John R. Weeks, a professor of geography and director of the international population center at San Diego State University, indicated that the absolute disparity was only 6 percent, but the comparative disparity was 40 percent.

“We have found no case in which a California court relied on the comparative disparity test to find a jury venire unconstitutional nor a case from any jurisdiction where a court has held a comparative disparity of 40 percent unconstitutional,” Gilbert declared.

The high court also directed attorneys to brief whether Santa Barbara’s method of forming jury venires—in which notices are sent to persons whose names are culled from voter-registration and Department of Motor Vehicles records, but no effort is made to locate non-responders unless a new address is obtained—is legal.

Ochoa said that because of the higher Hispanic nonresponse rate, the county should be resending jury questionnaires to those who did not respond. But the Court of Appeal found no constitutional basis for ordering such action, since the trial judge acknowledged the method was race-neutral.

At issue, the high court said in its order granting review, is whether the county is complying with Code of Civil Procedure Sec. 203, which provides that “[a]ll persons are eligible and qualified to be prospective trial jurors” unless they fall within one of the eight categories of persons expressly excluded.

•Agreed to decide whether the operator of an Internet auction site is immunized by federal law from liability for refusing to remove what it knows to be defamatory comments provided by one user about another. The Court of Appeal for this district held that it is not.

Div. Three concluded that the immunity granted to a “provider or user of an interactive community service” by 47 U.S.C. Sec. 230, a part of the Communications Decency Act passed in 1996, does not extend to a party who distributes information it knows or has reason to believe is defamatory.

eBay Inc. sought review of the denial of immunity in a suit brought by Roger M. Grace.

Grace sued eBay and Hollywood memorabilia dealer Tim Neeley after eBay refused to remove negative comments Neeley made after selling Grace six vintage entertainment magazines.

According to Grace’s complaint, Neeley said Grace “should be banned from eBay” and was “dishonest all the way’’ for alleging in the site’s “feedback” section that the magazines he bought had arrived late and in a worse condition than advertised.

While granting eBay’s petition, the high court denied Grace’s petition for review of the Court of Appeal’s ruling that eBay is a “provider” within the meaning of the statute. Croskey cited several cases that have rejected that same argument, and also concluded that if eBay isn’t a provider, it is immune as a user.

The high court previously agreed to review the ruling of the First District’s Div. Two in Barrett v. Rosenthal, which held that Sec. 230 did not protect a Web site operator from application of the traditional rule that one who knowingly republishes another person’s defamatory statement may be held liable.

Grace is editor and co-publisher of the METNEWS as well as an attorney.

•Denied review of the Fourth District, Div. Two’s summary denial of a habeas corpus petition by former conservator Bonnie Cambalik. Cambalik is serving a 26-year prison term after pleading guilty to a total of 22 counts of embezzlement by a caretaker, grand theft, perjury and receiving stolen property in connection with estates she was handling in Riverside County.


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