updated: 9/14/04

LAW 18 FAMILY LAW VIRTUAL LECTURE #3

I. TODAY'S TOPICS

A. JURISDICTION

1. WHAT IS JURISDICTION?
The literal meaning of the word jurisdiction in latin is "the power to speak the law". This comes from juris which means "law" and diction which means to speak. Basically, what it means in today's world is that before a court can hear a case, it must have jurisdiction over the property involved in or the person against whom the suit is brought. And, the court must have jurisdiction over the subject matter.

a. SUBJECT MATTER JURISDICTION
Jurisdiction over subject matter is a limitation on the types of cases a court can hear. There are courts of general jurisdiction and courts of limited jurisdiction. There are also courts of original jurisdiction and courts of appellate jurisdiction. The cases we are encouraged to read in this class are appellate cases. They have all been heard in the trial court and then appealed and possibly appealed again. Decisions of the courts of original jurisdiction, in California, are not recorded, bound, and used to make case law. That is left only to courts of appellate jurisdiction, the California Appellate Courts and the California Supreme Court. Examples of courts of limited jurisdiction are Bankruptcy Court, Tax Court, Municipal Court, Small Claims Court.

All California family matters are brought before the Superior Court of California. Which is a court of general jurisdiction. What is a California family matter? A dissolution, nullity, adoption, custody, or other family matter where at least one of the parties is domiciled in California. There is a difference between domicile and residence. Residence is where you are currently living. Domicile is where you intend to permanently live, and is usually proven by driver's license, voter registration, etc. The Superior Court of California has subject matter jurisdiction over all dissolution of marriages where one of the parties is domiciled in California.

b. PERSONAL JURISDICTION OR PROPERTY JURISDICTION
A particular court can exercise in personam jurisdiction (personal jurisdiction) over residents of a certain geographical area. In California, each county has jurisdictional authority over residents within that county. Under the authority of the Long Arm Statute, a court can exercise personal jurisdiction over nonresident defendants/respondents as well. It must be demonstrated that the non-resident defendant/respondent has had sufficient contacts, or minimum contacts with the state to justify the jurisdiction.

A court can also exercise jurisdiction over property that is located within its boundaries. This kind of jurisdiction is known as in rem jurisdiction, or "jurisdiction over the thing". In order for a court to have the jurisdiction to enforce a support order however, in personam jurisdiction is required. For a better understanding of this concept please refer to the reading associated with todays lecture or to the Discussion Case (Fitzgerald and Burnham respectively).

B. VENUE

1. WHAT IS VENUE
Venue is concerned with where is the most appropriate location for the trial. The party which files the complaint/petition, decides the venue, usually. In some cases, other factors require a change of venue to a different community. A change of venue is more common in a criminal trial, when the right to a fair trial needs to be safeguarded At the beginning of any family court matter in Los Angeles Superior Court a Cover Sheet is attached to the Petition and Summons. It is not a Judicial Council Form because it is not state-wide. It is only used in this county. It basically decides the venue, in this case the District, in which to file the matter, lists the possible applicable reasons for that choice, and it supplies the chosen venue with an estimate of how long the expected hearing will take and if there are children involved. So, even though we won't be filling out the form you should be aware that at the very beginning of any Dissolution the Petitioner must fill out and attach this FAMILY AND PROBATE CASE COVER SHEET AND CERTIFICATE OF GROUNDS FOR ASSIGNMENT TO DISTRICT. If we were filling out the Cover Sheet we would put the Short Case Title as BRANCH V. BRANCH, we would leave open the Case Number as we wouldn't know it yet. For #1 we would say, "there are 5 minor children involved" and expect the case wouldn't take more than a morning, say "4 hours". For #2, the type of action, we would check off the very first box: "A5520 REGULAR DISSOLUTION OF MARRIAGE". There are two applicable reasons. We would circle #2, which is "District where one or more of the parties reside." After turning the page, and again putting the short title of the case, BRANCH V. BRANCH in the upper left hand corner of the page, you get to #3 which asks you to choose the District, and enter the qualifying address. You would check off reason "2" enter the Petitioner's resident address city, state and zip. Then you would ask for assignment to the NORTHWEST District of the Los Angeles Superior Court. Then the attorney signs it and dates it. Cover sheets can be obtained at any courthouse in Los Angeles County.

C. SERVICE OF PROCESS

1. WHAT IS SERVICE OF PROCESS
When you file a petition/complaint with the court, the court clerk signs a summons to the other party. This is just what it sounds like. It is an invitation by the court to come to court and give their side. If the other party gets the summons and chooses not to come to court, that means they are agreeing to the petition/complaint and agree to be bound to it. They thereby default. On the other hand, they may read the petition and not agree to it, go to an attorney and file a response/answer within the 30 days required from the date of they were served. When someone was actually served is very important. When someone is served is when the court has personal jurisdiction over them.

2. METHODS OF SERVICE AS SET OUT IN CCP §413.10
a. Personal Service - By personally serving copies of the Summons and Petition to the person served.
b. Substituted Service - By leaving copies of the Summons and Petition at the dwelling house, usual place of abode or usual place of business in the presence of a competent member of household or person apparently in charge, who is at least 18 years of age. This person was informed of the general nature of the papers. Thereafter these papers were mailed by first-class mail postage pre-paid to the person served at the address where the papers were left.
c. Mail and Acknowledge Service - By mailing by 1st-class prepaid postage copies to the person served, together with two copies of the form of Notice and Acknowledgement of Receipt and a return envelope, postage prepaid, addressed to the sender. Service is completed upon execution of the Notice of Acknowledgement which must be returned to the sender.
d. Registered Mail Service - By mailing to address outside of California (by registered mail with Return Receipt Requested) to the person served. Service is complete 10 days after papers sent if return receipt is returned.

3. WHY IS DATE OF SERVICE OF PROCESS IMPORTANT?
In a marriage dissolution, the respondent has 30 days from when the court obtains jurisdiction over their person, to respond before being subject to default. The 30 days always begins on the NEXT DAY, don't know why, it just does. Following are a couple of hypothetical examples.

If a respondent is personally served on, January 29, the court has jurisdiction over them on January 29. The 30 days begins to run on the 30th of January and respondent would be subject to default on February 29 or March 1, if it is not a leap year.

If respondent is served by Mail and Acknowledge which is sent on July 29th, received on July 31st, Notice and Acknowledge is signed on August 3rd, and returned by mail on August 6th, received in petitioner's office August 8th &.when would the respondent be subject to default? Default would occur on September 3rd. Service was complete upon execution of the Notice, which was on August 3rd. The 30 days starts to run the next day, August 4th. Thirty days later is September 3rd. As you can see, these are very important dates. They need to be noted in a prominent place in every dissolution file. In case you are totally confused perhaps the codes will help you understand. I highly recommend reading the codes associated with today's lecture.

II. REQUIRED READING

A. TEXT

Pages 6 through 14 deal with the subjects of Jurisdiction, Venue , Proof of Service.

B. CODES

Code of Civil Procedure = CCP Business and Professions Code = Bus&Prof
Government Code = GC Family Code = FC

CCP §413.30 CCP §415.10 CCP §415.20
CCP §415.21 CCP §415.30 CCP §415.50
CCP §416.10 CCP §417.20 Bus&Prof §22350 (Process Servers)
FC §2010 (Jurisdiction) GC §6064

C. ASSOCIATED CASE

Please read In re Marriage of Fitzgerald & King, 39 Cal App 4th 1419 (1995) - click here for the case. . Briefing the case is not necessary.