Appellate Opinions

The Law Offices of Marjorie G. Fuller has been principal appellate counsel on more than 750 cases since 1985. The following 60 cases resulted in opinions published in California Official Reports (indicating new law or new interpretations of law):


Elkins v. Superior Court (Elkins) (2007)
41 Cal.4th 1337 (Amicus Curiae for Los Angeles Cty. Bar Ass’n., Orange Cty. Bar Ass’n, et. al.)
The Court overturned a rule which required family law litigants to present their cases by means of written declarations, and held dissolution trials are subject to the same general rules of procedure as other civil trials. This firm’s amicus curiae brief was cited in the California Supreme Court’s opinion, which ultimately led to the formation of the Elkins Task Force to improve procedure in family law cases.

Viner v. Sweet (2003) 30 Cal.4th 1232
(Amicus Curiae for Orange Cty. 
Bar Ass’n)
In a malpractice suit involving an attorney’s performance in giving advice and preparing documents for a business transaction, the clients were required to show that, but for the alleged malpractice, it was more likely than not that the clients would have obtained a more favorable result in the transaction.

Dawn D. v. Superior Court (Jerry K.) (1998)
17 Cal.4th 932

In a paternity case, the biological father’s interest in establishing a relationship with his child, born to a woman married to another man at the time of conception, was not constitutionally protected.

Asgari v. City of Los Angeles, et al. (1997)
15 Cal.4th 744

In a false imprisonment claim, Government Code section 821.6 precluded an award of damages for injuries sustained by the arrestee after the filing of formal charges because the statute provided immunity to police officers for malicious prosecution.


In re Marriage of C.T. and R.B. (2019)
33 Cal.App.5th 87
Before  a court may remove a child from the custodial parent, a noncustodial, move-away parent must meet his or her heavy burden of showing that changing custody and relocating the child out of state would not detrimentally affect the child’s continuity and stability and is in the child’s best interests.

In re Marriage of Wong (2019)
32 Cal.App.5th 1049
When all orders issued in a dispute would technically be post-judgment orders, injunctive orders are appealable but preliminary orders regarding discovery or joinder are not.

In re Marriage of Turfe (2018)
23 Cal.App.5th 1118
Dissolution of marriage judgment stands where court properly denies request for annulment in face of a lack of clear and convincing evidence supporting contention that wife defrauded husband.

In re Marriage of Kamgar (2017)
18 Cal.App.5th 136

A managing spouse breaches his fiduciary duty of disclosure by failing to disclose his intention to invest more community assets than the other spouse specifically authorized, and suffering a loss.  The proper remedy is half the value of the assets on the date the managing spouse made the investment.

Walker v. Physical Therapy Board of California (2017) 16 Cal.App.5th 1219 
Board’s revocation of physical therapist’s license based on dangerous use of alcohol does not require separate showing that therapist’s conduct affected therapist’s profession.

Anna M. v. Jeffrey E. (2017)
7 Cal.App.5th 439

Trial court did not have to deem cohabitant’s financial support of mother to be mother’s “income” when calculating father’s child support.

In re Marriage of Usher (2016)
6 Cal.App.5th 347

In light of the father’s overall wealth, decrease in his income from employment was not a material change in circumstances warranting downward modification of his existing child support payment.  There was no reduction in his ability to pay, his standard of living, or the amount needed for the child to maintain a lifestyle equal to that of the father.  Reduction was thus an abuse of discretion.

In re Marriage of Brandes (2015)
239 Cal.App.4th 1461

A hybrid allocation of separate and community property in a separate property business is proper:  it is not a breach of fiduciary duty for a spouse to invest separate funds into a separate business nor in devoting personal efforts to a separate property business.

Jane J. v. Superior Court (Christopher J.) (2015) 237 Cal.App.4th 894
The court issued a peremptory writ in the first instance because “respondent court erroneously issued a modification order changing custody to the noncustodial parent, thereby requiring the minor children to move in the middle of the school year from their California home to the noncustodial parent’s home in Alabama. Respondent court abused its discretion by failing to consider the relevant factors, including the children’s existing educational, physical, emotional and familial relationships with the custodial parent, and whether an out-of-state move-away would detrimentally affect their interests in continuity and stability.”

In re Marriage of Williamson (2014)
226 Cal.App.4th 1303

An enforceable child or spousal support order can not be based on cash advances from the husband’s wealthy parents that ceased before trial with no evidence they would resume, even though the advances were gifts and not loans.

In re Marriage of Georgiou (2013)
218 Cal.App.4th 561

In a post-dissolution action, the trial court properly granted summary adjudication in favor of ex-husband in ex-wife’s action under Family Code section 1101, for breach of fiduciary duty, holding that section 1101 did not apply under the circumstances, and wife’s exclusive remedy was a set-aside action.

In re Marriage of Greenway (2013)
217 Cal.App.4th 628

In a dissolution action, the trial court properly determined that husband was mentally capable of making a reasoned decision to end the marriage and granted his request for status-only dissolution.

In re Marriage of Ficke (2013)
217 Cal.App.4th 10

In a dissolution action, the trial court erred in imputing income to the 95% custodial parent for purpose of awarding child support and ordering spousal support from the low earner to the higher earner without finding that doing so was in the children’s best interest.

In re Marriage of Bendetti (2013)
214 Cal.App.4th 863

The trial court properly ordered a joined party to pay attorney fees and costs to the party who joined her. The party seeking fees from a joined party had no duty to demonstrate a likelihood of success on the merits before being entitled to a fee award, nor did she have to make a prima facie case linking the joined party to an issue in the case before the court to enter a fee award for work already performed.

Brennan v. Townsend & O’Leary Enterprises, Inc. (2011) 199 Cal.App.4th 1336
In an employment discrimination action, the trial court properly granted judgment notwithstanding the verdict where insufficient evidence supported a finding that plaintiff was subjected to severe or pervasive harassment based on her gender.

In re Marriage of Tong and Samson (2011)
197 Cal.App.4th 23

In a post-dissolution action, the trial court erred in allocating the husband’s severance pay to a single month for purposes of a provision in the parties’ stipulated support order requiring the husband to pay the wife a percentage of his monthly compensation in excess of his base salary.

Kevin Q. v. Lauren W. (2011)
195 Cal.App.4th 633

In a paternity action, the trial court properly declined to award fees to the mother under Family Code sections 7605 and 7640 where both parties had equal ability to pay and the fees requested were not reasonably incurred.

Donahue v. Donahue (2010)
182 Cal.App.4th 259

In litigation over administration of a trust, the trial court erred in awarding the trustee $5 million in past and ongoing attorney fees he incurred in defending against the beneficiary’s allegations of self-dealing and conflict of interest. Fee awards must be reasonable in amount and appropriate for the benefit of the trust.

In re Marriage of Dietz (2009)
176 Cal.App.4th 387

In a post-dissolution action, the increased value of the wife’s retirement accounts did not constitute a material change in circumstances justifying a reduction of spousal support under Family Code section 4320.

Kevin Q. v. Lauren W. (2009)
174 Cal.App.4th 1557

In a paternity action, the biological father’s voluntary declaration of paternity had the force of a judgment under Family Code section 7573, which trumped the presumed father’s presumption under Family Code 7611, subd.(d).

Gdowski v. Gdowski (2009)
175 Cal.App.4th 128

In an elder abuse action, a restraining order could be issued based on evidence of past abuse, without any particularized showing that the wrongful acts would be repeated. The failure of the defendant to restrain her attorney from abusive cross-examination of the plaintiff could not be used as evidence of elder abuse.

In re Marriage of Berger (2009)
170 Cal.App.4th 1070

In a post-dissolution action, the husband’s voluntary decision to continue dedicating his efforts and services to a start-up company which distributed almost none of his income to him, instead of seeking other gainful employment, could not be used as a justification for reducing his obligation to pay child support.

In re Marriage of Mosley (2008)
165 Cal.App.4th 1375

In a post-dissolution action, the husband’s discretionary year-end bonus could not be used as a basis for formulating guideline support, but could be awarded based as a percentage amount.

Adoption of Arthur M. (2007)
149 Cal.App.4th 704

In an adoption case, a father who had failed to come forward promptly and assume his parental responsibilities did not have the status of a presumed father, and therefore could not veto an adoption.

Esslinger v. Cummins (2006)
144 Cal.App.4th 517

In a probate action, the beneficiary had standing under Probate Code section 17200, subd. (b)(7) to petition the probate court for an order compelling the trustee to account.

Gabriel P. v. Suedi D. (2006)
141 Cal.App.4th 850

In a paternity action, the biological father was entitled to establish his paternity because the mother had precluded him from becoming a presumed father, but the trial court should have also considered the husband’s claim to be the child’s presumed father.

Harris v. Investors’ Business Daily (2006)
138 Cal.App.4th 28

A trial court’s order dismissing a cause of action brought by telemarketers against a newspaper alleging violations of the Fair Labor Standards Act was in error, because the cause of action was brought under Business & Professions Code section 17200, and was therefore not preempted by the Act’s opt-in policy.

In re Michael R., a Minor (2006)
137 Cal.App.4th 704

In an adoption case, a father who had failed to come forward promptly and assume his parental responsibilities did not have the status of a presumed father, and therefore could not veto an adoption.

Steven S. v. Deborah D. (2005)
127 Cal.App.4th 319

In a parentage action, Family Code section 7613, subd. (b) divested a sperm donor of father status, even though he had intercourse with the mother after the initial impregnation failed, the mother acknowledged the donor as the father of the child, and he was present for the birth of the child.

Laguna Beach County Water District v. Superior Court (2004) 124 Cal.App.4th 1453
Work product protection is only waived by a disclosure that is wholly inconsistent with the purpose of the privilege, which is to safeguard the attorney’s work product and trial preparation.

In re Marriage of Mehren and Dargan (2004)
118 Cal.App.4th 1167

A postmarital agreement in which the husband agreed to forfeit his entire interest in the parties’ community property failed for lack of legal consideration, because the sole consideration was the husband’s promise to refrain from using illegal drugs, which is a crime.

Prato-Morrison, et al. v. Doe, et al. (2002)
103 Cal.App.4th 222

A couple brought an action against another couple seeking a determination that plaintiffs were the genetic parents of defendants’ daughters, based on the facts that plaintiffs and defendants were clients of the same fertility clinic when the twins were conceived, and that the clinic had been found guilty of misusing abandoned genetic material such as plaintiffs’. The trial court properly excluded as inadmissible hearsay evidence to establish a connection between their genetic material and the the fertility services received by defendants.

In re Marriage of Brewer and Federici (2001)
93 Cal.App.4th 1334

The failure of a spouse to disclose the existence or value of a community asset was a basis for setting aside a judgment on the grounds of mistake. Spouses must make full and accurate disclosure and account for separate and community property.

In re Marriage of Duncan (2001)
90 Cal.App.4th 617

In a dispute over characterization of a community property business, the court had considerable discretion to value the business as of the date of separation, and also to deny the wife’s request for attorney’s fees, because both the wife and the husband had adequate resources to litigate the controversy.

In re Marriage of Shaban (2001)
88 Cal.App.4th 398

In a dissolution action, a prenuptial agreement failed to satisfy the Statute of Frauds because it did not state with reasonable certainty what the terms and conditions of the contract were.

Brian C. v. Ginger K. (2000)
77 Cal.App.4th 1198

In a paternity action, because the child was not born into a marital union, and the petitioner had developed a substantial parent-child relationship with the child and received the child into his home, the petitioner could bring an action to be declared the legal father of the child.

Estate of Mitchell (1999)
76 Cal.App.4th 1378

Severance of a joint tenancy by recording a declaration of severance was not a transfer or disposition of property, where the deceased died before severance of the joint tenancy was completed.

In re Eric A. (1999)
73 Cal.App.4th 1390

The court dismissed the appeal of a father from the finding of the juvenile court that he had sexually molested his son. Although the son had Down Syndrome, based on his responses, the court properly concluded the son knew the difference between the truth and a lie and was competent to testify.

Guardianship of Simpson (1998)
67 Cal.App.4th 914

The termination of a guardianship was reversed because the court should have considered evidence of the father’s criminal trial and violent nature, and incorrectly put the burden of proof on the guardians.

In re Marriage of Schulze (1997)
60 Cal.App.4th 519

In a post-dissolution action, the permanent spousal and child support award was reversed because it was based on the temporary support figure. Orders for attorney fees and sanctions must be payable in manageable installments.

In re Marriage of Chandler (1997)
60 Cal.App.4th 124

It is improper to establish a child support trust with a portion of monthly child support. The trial court had no authority to create a fund to meet some unexpected contingency at some indefinite time in the future, or to provide for the child when she became an adult.

In re Marriage of Corman (1997)
59 Cal.App.4th 1492

In a post-dissolution action, it was error for the trial court to consider spousal support as a special circumstance to justify departure from the guideline child support amount under Family Code section 4057.

Herrle v. Estate of Marshall (1996)
45 Cal.App.4th 1761 (Amicus Curiae for Alzheimers’ Ass’n)

A mentally incompetent patient did not owe a legal duty to protect a caregiver from injuries suffered in attending to her based on assumption of risk.

Roslan v. Permea, Inc. (1993)
17 Cal.App.4th 110

In a personal injury action, the jury erred by failing to assess comparative fault in allocating all of the plaintiff’s noneconomic damages to one defendant. Liability should have been apportioned among the universe of tortfeasors.

In re Marriage of Iverson (1992)
11 Cal.App.4th 1495

In a divorce action, the superior court’s references to “not buying the cow when the milk is free” was an obvious stereotype of sex roles, and even if the court was not biased, it demeaned the wife and affected the trial court’s evaluation of the validity of the parties’ premarital agreement.

Dana Varney v. Superior Court (1992)
10 Cal.App.4th 1092

A creditor’s claim against an estate for the value of her services did not violate the forfeiture clause of the deceased’s will because it was a contract independent of the will and did not affect the rights of other beneficiaries.

In re Marriage of Jensen (1991)
235 Cal.App.3d 1137

A county retirement plan did not provide for distribution of benefits to the nonemployee wife until the employee spouse actually retired, so the trial court’s early dispursement of retirement benefits was erroneous.

In re Marriage of Hahn (1990)
224 Cal.App.3d 1236

In a dissolution matter, the trial court was not required to reopen the case to consider higher sales figures for the family home where there was no intervening sale, forfeiture, or any change in the nature of the home.

In re Marriage of Walker (1989)
216 Cal.App.3d 644

In a dissolution matter, stock options granted prior to the parties’ separation but exercisable after separation were the husband’s separate property because of the distinction between the ability to exercise an option and the ability to purchase the stock received pursuant to the exercise of the option.

In re Marriage of Hopwood (1989)
214 Cal.App.3d 1604

In a post-dissolution matter, an increase in the salary of the supporting spouse was an insufficient basis to request additional support, because the supported spouse did not show the initial amount of support ordered was insufficient to meet her needs and that the supporting spouse did not have the means to pay adequate support at the time of dissolution.

Watson v. Wood Dimension, Inc. (1989)
209 Cal.App.3d 1359

After termination by his employer, the trial court’s award of commissions to the employee was permitted by law where the quantum meruit standard used in calculating the amount was fair.

In re Marriage of Ditto (1988)
206 Cal.App.3d 643

Where the appellant failed to request a statement of decision, all intendments favored the trial court’s ruling and it was presumed that the trial court found all facts necessary to support the judgment.

In re Marriage of Zlatnik (1988)
197 Cal.App.3d 1284

In a post-dissolution matter, the trial court lacked jurisdiction to modify the parties’ stipulated agreement in which the termination clause explicitly stated spousal support payments would terminate after seven years.

In re Marriage of Hopkins and Axene (1987)
199 Cal.App.3d 288

In a post-dissolution matter, where a property right vested before the enactment of a statute, such right could not be altered, because doing so would not promote any important state interest.

In re Marriage of Guthrie (1987)
191 Cal.App.3d 654

In a post-dissolution matter, the trial court’s jurisdiction to modify the parties’ home award, entered by agreement of the parties, depended on whether the award was intended as additional child support.

In re Marriage of Lewin (1986)
186 Cal.App.3d 1482

In a child custody action, the mother did not need to show a change in circumstances even though the father had held primary custody since the child’s birth, but only needed to show the best interest of the child would be served by a shift in custody to the mother.