Benner v. Tam (In re Benner)

247 Cal. Rptr. 3d 906, 36 Cal. App. 5th 177
CourtCalifornia Court of Appeal, 5th District
DecidedJune 12, 2019
DocketD073758
StatusPublished
Cited by2 cases

This text of 247 Cal. Rptr. 3d 906 (Benner v. Tam (In re Benner)) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benner v. Tam (In re Benner), 247 Cal. Rptr. 3d 906, 36 Cal. App. 5th 177 (Cal. Ct. App. 2019).

Opinion

AARON, J.

*181I.

INTRODUCTION

At the direction of the trial court, respondent *908Rebecca Tam (Rebecca)1 filed a petition seeking to join appellant Dr. John Kachorek as a party to the marital dissolution proceeding between her and her former husband, Paul Benner. In her petition, Rebecca outlined the unusual procedural history of this case that led to her filing the petition for joinder. The trial court dissolved Rebecca and Paul's marriage in June 2010. In May 2011, Paul filed a postjudgment motion seeking modification of child custody. In June 2013, the trial court appointed Dr. Kachorek, pursuant to Evidence Code section 730,2 to conduct a child custody evaluation. Dr. Kachorek issued a child custody evaluation report in 2014.

In 2016, the trial court determined that Dr. Kachorek's report was deficient in a number of respects and that the report was thus of no value in assisting the court in determining what would be the appropriate child custody arrangement. The court ordered Dr. Kachorek to repay Rebecca and Paul all of the expert fees that they had paid him pursuant to his appointment.

In March 2017, the trial court set aside the repayment order and joined Dr. Kachorek, sua sponte, as a party to the action for the purpose of determining whether to order him to repay the fees. The trial court subsequently granted Dr. Kachorek's motion to quash the sua sponte joinder order and ordered Rebecca to file a formal petition to join Dr. Kachorek in the action.3

In August 2017, Rebecca filed a petition seeking to join Dr. Kachorek in the action. In her petition, Rebecca requested that the trial court determine whether to order Dr. Kachorek to repay the expert fees that Kachorek had been paid in connection with his appointment pursuant to Evidence Code section 730 to prepare a child custody evaluation.

*182Dr. Kachorek filed a special motion to strike the petition pursuant to the anti-SLAPP statute. ( Code Civ. Proc., § 425.16.)4 Dr. Kachorek argued that "the claims asserted in the petition arise from protected activity" (boldface & capitalization omitted) under the anti-SLAPP statute, namely, his providing a child custody evaluation to the court. Rebecca filed an opposition in which she argued that her petition "does not even contain a cause of action." Rebecca further argued that the petition sought merely to provide Dr. Kachorek with notice of a hearing regarding his fees under Evidence Code section 730, as directed by the trial court. The trial court denied Dr. Kachorek's anti-SLAPP motion, concluding that the petition did not state a cause of action arising from protected activity, but rather, merely joined Dr. Kachorek to the action for the purpose of "establishing the reasonableness of his fees."

We conclude that the trial court properly denied Dr. Kachorek's motion. Rebecca's petition to join Dr. Kachorek in the action does not assert any cause of action *909on behalf of Rebecca against Dr. Kachorek, a threshold requirement under the anti-SLAPP statute. (See § 425.16, subd. (b)(1) ["A cause of action ... shall be subject to a special motion to strike ...." (italics added) ].) Rather, the petition seeks merely to provide notice to Dr. Kachorek that the trial court would be issuing an order pertaining to, as the petition states, "the funds received by him in his role as an Evidence Code [section] 730 [expert]." Accordingly, we affirm the trial court's order denying Dr. Kachorek's special motion to strike.

However, Dr. Kachorek did not have to be joined as a party to the dissolution action in order for the court to determine the reasonableness of his expert fees-including whether to order him to repay fees already received-and it was error for the court to require that he be joined in the action. In part III.B, post , we outline the proper procedural manner by which the trial court shall determine this issue on remand.5

*183II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Dr. Kachorek's appointment and child custody report

The trial court entered a judgment dissolving Rebecca and Paul's marriage in 2010. In May 2013, Rebecca requested that the court appoint an expert pursuant to Evidence Code section 730 to conduct a child custody evaluation. The trial court appointed Dr. Kachorek to conduct the evaluation in August 2013. Dr. Kachorek issued a written report in August 2014 in which he recommended that Paul be awarded sole legal and physical custody of Rebecca and Paul's two children.

B. Proceedings related to Dr. Kachorek's report and Rebecca's request for an order directing Dr. Kachorek to repay expert fees

In October 2014, Rebecca filed a request for an order seeking exclusion of Dr. Kachorek's report from evidence in the child custody proceedings. In her request, Rebecca maintained that Dr. Kachorek had failed to follow the requirements of his appointment order and that he was biased against her.

In January 2016, Judge Pamela Parker issued an order excluding Dr. Kachorek's report from evidence. Judge Parker found that the "procedural deficiencies of Dr. Kachorek's report are substantial and pervasive," and that "there is substantial evidence of actual bias."6 In her order, Judge Parker stated, " Neither party has asked *910the court to assess the reasonableness of Dr. Kachorek's fees, which this Court is empowered to do. [Citation.] The Court reserves jurisdiction to determine the reasonableness of those fees, or lack thereof, upon the filing of a properly noticed motion."

In August 2016, Judge Parker issued an order stating the following:

"The Court finds that the report issued by Dr. Kachorek dated August 1, 2014, has no value. The Court finds that $ 0 is a reasonable fee for the evaluation. The *184Court orders a full refund for all monies paid to Dr. Kachorek by the parties, including but not limited to fees for Dr. Kachorek to testify."7

C. Judge Mok sets aside the repayment order, issues an order sua sponte joining Dr. Kachorek as a party, but later quashes the joinder order and directs Rebecca to file a petition for joinder

Dr. Kachorek filed a request that the repayment order be set aside.8 In December 2016, Judge Parker commenced a hearing on the request. At the outset of the hearing, upon learning that Paul had not been served with Kachorek's request to set aside the repayment order, Judge Parker continued the hearing to ensure that Paul be served. However, Judge Parker provided Rebecca and Dr. Kachorek with the following tentative ruling:

"The tentative would be to set aside that portion of the order that finds that Dr. Kachorek is entitled to zero and orders a refund of everything paid to him.

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Cite This Page — Counsel Stack

Bluebook (online)
247 Cal. Rptr. 3d 906, 36 Cal. App. 5th 177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benner-v-tam-in-re-benner-calctapp5d-2019.