W appealed FC 271 sanction order issued after H had to file a motion for entry of judgment pursuant to CCP 665.6 to enforce parties’ settlement agreement recited on the record. W argued TCT “erred by awarding sanctions without considering any oral testimony, relying instead on documents submitted in support of the sanctions motion.” Affirmed. Although H was not present to testify, and W objected under FC 217 and Shimkus to H’s declarations as hearsay, the CtA held that since W had not served a witness list or notice to appear under CCP 1987(b), she had “forfeited” the right to live testimony (citing Binnette). Further, “When the parties fail to present any live testimony in support or opposition to a motion in family court, Code of Civil Procedure section 2009 controls, which—despite the hearsay rule—allows a motion hearing to be decided based on declarations. (Code Civ. Proc., §2009). Distinguishes Swain on grounds W knew of declarations in advance and did not expressly request right to cross-examine H.
Marriage of George & Deamon
5/17/19, CA 4/1: D073667
https://www.courts.ca.gov/opinions/documents/D073667.PDF
