Evidence is the substance of trials. Before the proceedings in the civil division of the San Francisco Superior Court in January of 2015, I would not have believed that courts could or would warp testimony and block essential evidence in the form of notarised documents — and instead, base their decisions on claims corroborated by no witnesses and no documentation. I had no reason not to trust in the impartiality of California’s civil court system before I had any experience of it. The smoke signals sent up by public intellectuals like Charles Murray to attract attention to what some American courts are actually doing in the name of justice would not have caught mine.
The version of the facts of the case that the trial and appellate courts endorsed was, with absolute consistency, based on the claims of my former partner, a judicial colleague of the trial judge. The trial court put so much effort into supporting his position that even the defendant denied that a key assertion made by the judge as ballast for one of his arguments — was based on actual testimony by him. (See page 37(i) of my appellant’s opening brief.)
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The discussion here is not intended to make my case all over again, or sort out the rights and wrongs of the underlying dispute. It is about the trial court’s one-sided filtering and rearrangements of testimony and evidence, supported unquestioningly by the appellate court — which addressed virtually none of the procedural and other errors to which I drew its attention.
Of course divergent narratives — dissected in my appellate briefs at length, but only alluded to in the encapsulations on this site — were at the heart of the trial. The triviality of the arguments about them is contemptible. Unfortunately, pettiness is inescapable because California’s law for unmarried cohabitants has not been streamlined — unlike Australia’s, for example, under which my claim would easily have met two of the four requirements for legal recognition of a ‘de facto couple,’ any of which is sufficient by itself.
Contrary to what most intelligent people assume, there is no such thing as common law marriage in California. This seems odd, as the state led the way in introducing no-fault divorce law — saving courts and divorcing couples humiliating, tedious litigation matches and untold sums of taxpayer funds. The Marvin guidelines require trial courts to decide disputes between former cohabitants on a case-by-case basis. In setting out these directives in 1976 the Supreme Court considered it too soon, in a time of social ferment, to make one-size-fits-all law capable of addressing the extremely wide variations in arrangements and contracts between such couples.
Because of this dissimilarity, it has been difficult for courts to find earlier decisions or legal ‘precedents’ to rely on for guidance.
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Documentary proof that the trial court did not want the appellate court to see
My former partner did not deny that we had spent 16 years in the same household in a relationship indistinguishable from a marriage, but in other testimony told the trial court that we were just cohabiting friends without any legally enforceable responsibilities to each other. He went to pains to impress on the judge, on the first day of the proceedings, that even then, our cohabitation still had the profile and shared routines of a married couple — even though neither of us had ever wanted a formal marriage. I had indeed been financially dependant on him for most of our cohabitation, he said; indeed I had cooked virtually all our meals and provided for all our other domestic needs — but we had no legal obligations to each other.
He told the court that he had planned to spend the rest of his life with me — and still intended to do so, as long as I dropped the legal action that arose out of his refusal to draft a formal financial arrangement (on which his position was unchanged). This agreement was a plan addressing what couples typically have to contend with in old age, including the risk of catastrophic medical bills, and the possibility that either partner might have to assume carer responsibilities on behalf of the other for months, years, or not inconceivably, decades.
He denied that he had been promising me an agreement for such an arrangement for well over ten years. Lawyers — including the mediator I went to for help at the suggestion of my GP (doctor) — assured me that I did need such a document, being a dependant without the automatic legal protections marriage guarantees. My former partner was 70 by then; I, almost a dozen years younger. The mediator-lawyer told me that if we couldn’t make a formal financial plan for the future, I would need another lawyer to negotiate terms for ending the relationship.
The trial court tried helping my former partner to prevent the appellate court from seeing documentary proof of a legally recognisable relationship — but gave way after I filed formal objections to this attempt. The documents included:
• Mutual wills — in which we were each other’s sole beneficiaries
• Mutual power of attorney, authorising each of us to act on behalf of the other in both financial and medical matters
• The transcript of a pre-trial deposition in which my former partner had denied that we had assigned each other attorney power until he was shown the documents and confirmed their authenticity
• A 2012 house rental application form on which he had described me as his ‘life partner’
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A trial court saw no relationship practically indistinguishable from a marriage — but shrugged off the implications of a lien against my property for his debt
The San Francisco trial court did succeed in helping him to shut out proof of extraordinary harassment that legal opponents of his in another case inflicted on me by treating me as his wife — a legal action still playing out as he was testifying that our life together was free of legal ties or any evidence of a committed relationship.
The harassment was in court records from another case — in Marin County — in which he had steamrolled my opposition to suing the owners of the defective house he had rented for us three years earlier. Because he had lost an argument on legal technicalities — on appeal from a lower court’s judgment against him — he owed the other side a bill for legal costs of over $90,000. To collect this debt, the lawyers on the other side placed a claim in the form of a lien on the only physical assets owned by either of us that they had found — the mountain cabin I bought to write in, years before we ever met — as if it were our joint property. Yet – astoundingly — both this claim and the ‘to whom it may concern’ letter from my former partner in which he admitted that he had made litigation unavoidable by withholding the rent — ignoring my ‘vociferous’ protests — were declared irrelevant by his colleague, the San Francisco trial judge.
At the 12 March 2015 hearing at which I gave the judge a copy of the lien against my cabin and a brief summary of its origins — my first court appearance without a lawyer — she read a brief description of them into the record, but refused to acknowledge what the lien demonstrated. She stated: ‘Certainly it will affect your future financial situation but this lawsuit basically is a retrospective not a prospective view of the circumstances which surround the issue of whether or not there is a contract here.’
From there, she immediately redirected the trial to other matters, cutting me off when I tried to make the obvious objections.
The First District Court of Appeal, which declined to review the trial judge’s ‘fact-finding,’ apparently saw no inconsistency between accepting my punishment as a putative spouse in the Marin County case, while being denied a virtual wife’s protections from the uncertainties of old age by the San Francisco court.
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Appellate courts are far more inclined to support trial courts than appellants
Legal textbooks explaining the basics of how American courts work teach that appellate courts almost always rubber-stamp the version of the factual history of a dispute that the trial court chooses to believe. I was sure that this could not happen in my case — that the appellate justices would either correct the errors stemming from my former partner’s position as a judicial officer and the repeated denials of due process, or order a new trial. I was gravely mistaken. Not only did the First District Court of Appeal overlook the conflict of interest and its consequences for me, it did worse in a baffling contradiction in which:
… On the one hand:
The appellate justices supported the trial court’s chief justification for its decision on my case — which depended on successfully tying it to another case involving unmarried cohabitants which, the trial judge asserted, was virtually identical.
… On the other:
The appellate justices did concede in their opinion that I had demonstrated in my appellate brief that the two cases are not remotely alike. (For my point-by-point comparison, see pages 47-51 of my appellant’s opening brief.) But they breezed past the implications of that obvious distinguishability, pronouncing it inconsequential — ‘The question, however, is not whether the facts in this case are identical …’ — on the way to a different justification for supporting the trial court. They did not acknowledge the undeniable implication: that the trial court’s assertion of a strong similarity was a critical support beam without which the logic of its decision against me collapsed.
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Could online court proceedings guarantee fairness in handling evidence?
If the trial of my case had been conducted online — in, say, some equivalent of the Online Court being designed in Britain by Lord Justice Briggs — could a trial and then an appellate court have turned trial testimony back-to-front, partly through skewed proceedings and later, in their statements of decision? Or obstructed vital evidence from being presented at trial? Or ignored crucial facts that were put on record during the proceedings — to support a judicial officer of the trial court?
The answer seems as plain, to me, as the biblical writing on the wall — but readers will make their own guesses that either will or won’t be confirmed when some version of the Online Court goes live in jurisdictions everywhere in the English-speaking world.
Here are some other examples of the handling of evidence:
An undefined table and unspecified other belongings are accepted by both courts as evidence of a domestic ambush.
The First District Court of Appeal said in its opinion: ‘In 1998, Barron moved from a home she owned in Modoc County into the home Meredith was renting in San Francisco. Meredith denied he asked Barron to move in; in fact, he was surprised when she showed up one day with ‘belongings in a greater quantity than I would have expected for the weekend.’
Here is the trial testimony of my former partner on this point: ‘[W]e never had any discussions whatsoever about even living together until she arrived in — sometime in September, I believe, of 1998 with personal belongings, a table, since there wasn’t any table in the place that I was living in yet since I just moved in, and other items that indicated a much longer stay. And even then, when she arrived, we didn’t even discuss at that point how long she was going to stay. In fact, as I recall the situation, we never did discuss how long we would be together. It just evolved; that she moved in, and we went on in a relationship.’
In other words, those claims of my former partner — a family law specialist for nearly 40 years and fellow-judge –- were accepted without any cavil, or request for corroboration or any sort of proof, by the First District Court of Appeal, even though they sharply contradicted his own testimony on the same day. Never mind that no one who has ever known me could imagine me arriving for a short stay — let alone moving in — without a clear invitation; preferably, repeated. As the trial judge herself recorded, I have never sold my cabin in Modoc County. The transcript shows that I testified more than once about the distraction and inconvenience of running two households all through the relationship.
Just as my former partner testified, our cohabitation gradually ‘evolved.’ Contrary to his testimony, it did not begin on any particular day involving the transfer of furniture; nor unilaterally, but by mutual consent. There were no claims by him about my arrival with a moving van, or that I had needed any help with carrying in the light folding table I still own, displayed in the photographs on this site. No one informed either the trial or appellate court about the type of table it was, as neither I nor the lawyer representing me in court had any inkling of the significance that the defendant would ascribe to it retrospectively. For the same reason, I had seen no need to explain that the ‘other items’ he referred to were the two folding chairs that went with it. Most people, if they had a picnic furniture set, might have done exactly as I did to spare myself and my host from sitting on the floor of his empty apartment.
But as the appellate court explained, it relied on the trial judge’s sifting of facts, and she said that as a ‘devoted note-taker,’ she relied on her own records. Had she been guided by the reporter’s transcript for 16 January 2015, she might have seen that my former partner’s claims of a domestic ambush — we ‘never had any discussions whatsoever about even living together’ — were impossible to reconcile with his other statements on 16 January 2015:
• On page 47 — or 65 pages before any mention of the table — the transcript shows that my former partner had investigated the possibility of moving up to my cabin in the mountains. He had made enquiries about the availability of long-distance assignments for writing appellate briefs and concluded that this was not, realistically, an option for him. (See my appellate brief, p.12.) That was when the alternative of my moving down to the Bay Area arose.
• On page 112, where he introduces the table into his story, he also tells the court that before it arrived in his empty apartment, he had emailed me about a financial crisis that had led him to declare bankruptcy. Page 48 of the transcript records that I confirmed that when I testified: ‘He’d written to me in the summer of 1998, saying he was trying to arrange his financial affairs so that we could be together.’ (Appellate brief, p. 16.)
• The lawyer representing me on that day did not think it necessary for me to testify about my extreme reluctance to move down from my cabin in the mountains. Pages 54 and 69 of the transcript show that a few weeks after my first visit to my former partner in his unfurnished apartment, he surprised me with a presentation of a credit card and cheque book for a bank account in both names to use for expenses in the evolving household — to show his appreciation for my being there. He confirmed these details in his turn on the stand.
The trial court refused to acknowledge a distinction between ‘day job’ projects and other writing.
The trial judge’s statement of decision concluded, in part: ‘The Court finds there was no agreement, express or implied that … plaintiff give up her professional writing career.’
I never claimed that I had, or was asked to. Rather, I explained how and why I gave up the money-making half of my work, and the economic structure of roughly 15 years before the cohabitation. The trial judge shut out detailed testimony, replying to her questions near the end of the trial, about terminating the lucrative ghostwriting that had supported me in my cabin, used to pay bills that poorly compensated freelance journalism and literary projects could not.
I testified that a few years after we began to drift into our life together, my former partner understood that I could not juggle running two households, shuttling between my cabin and the Bay Area — and also continue in my pattern of shifting back and forth between money-driven writing projects done on Silicon Valley’s 24/7 schedules, and strictly idealistic work. Neither of us had children to support. I explained that as he had insisted that he was earning enough to cover his present and future needs and mine, I accepted his offer of financial support in exchange for giving up my life in the mountains and house management. After that transition, I continued to work on articles and manuscripts in which monetary considerations played almost no part.
No reference to my account of the evolution of this exchange, fully recorded in the reporter’s transcript, or to the very different compartments of my writing life — like a lawyer working either pro bono, or for fees — appeared in the statement of decision. (See pages 21-22 of my appellate brief.)
There, the judge stated that as I had continued to write and have work published, I had given up nothing and therefore, was owed nothing when our relationship ended.
The mythical ‘$75,000 salary’.
Though it records the conflicts in our testimony about this, the trial judge’s statement of decision of 14 May 2015 essentially endorses — without any caveat about missing documentation or other corroboration — my former partner’s claims about having paid me a salary, and its amount. This was in spite of his firm assurances at the trial that any money he gave me was never tied to any tasks I was expected to perform, or to any specific obligations or responsibilities. True, and for that reason, it could not — according to any dictionary — meet the definition of a salary.
In my testimony, I explained that for some years after our cohabitation began, I continued to make mortgage payments on my cabin and meet all major expenses related to it, including taxes and insurance. I said that I did this mostly from dwindling savings. After an accountant friend warned me about the importance of keeping up my social security contributions, I told my former partner that I would be returning to my cabin, day job, and survival scheme as a single woman to earn the lump of money I would need to set aside for my old age. (See p.23 of my appellate brief.) I said that he had dissuaded me from doing this: proposed, instead, that he would put me ‘on the payroll’ by making me a strictly honorary member of his law practice — just as he had his last partner, in their twelve years together — to which I had replied that linking the word ‘payroll’ to our private life was distasteful.
He persuaded me that the term was a technicality: the exchange of contributions at the practical core of our relationship would be unaffected. He would continue to meet the expenses of our joint household. I would have independent control of some — unspecified — modest sum paid monthly from his law practice to protect my social security safety net and continue to pay for my cabin. As there was never any question of a salary, there were no negotiations: I asked him to pick any amount he thought suitable for disaster insurance — but, as I told the court, I saw nothing like the $75,000 he claimed as the sum.
By our final years as a couple, I told the judge in reply to her request for details, he was giving me two cheques a month, adding up to roughly $36,000 a year before taxes. He told her that cost-of-employment overhead accounted for the gap between those amounts. I said that this sounded too large; but pointed out that I was no expert on the subject and had never enquired about the breakdown of costs to his practice. He did not supply the court with any breakdown of his accounting — and it is remarkable that the statement of decision fails to mention that the judge saw no objective proof of his assertions.
Too many concerts: ‘Defendant afforded Plaintiff cultural opportunities in an attempt to enrich her life.’
In a final example, I offer my readers a particle of light relief from this depressing saga. The 16 January transcript shows that I testified about the chronic interruptions of my work after I relinquished my financial self-sufficiency and adjusted my work routines for our shared life. My former partner insisted on my accompanying him to more than five times as many San Francisco Symphony concerts and pre-concert dinners as I wanted to attend, in any year — not least because of the day he usually chose for these, and because going to one meant that I had to make an expedition from Marin County by road and sea. ‘Not good for writing,’ I testified, ‘because you work up a head of steam on a Monday and then have to catch a ferry … on many, many — too many Wednesdays.’
But the judge’s statement of decision transforms me into a Cinderella suddenly presented with ‘cultural opportunities’ I had never known. It reinvents chapters of my life best described as carefully planned downshifting — giving up my connections to the fleshpots and glamour of London and Silicon Valley first, for the quiet and chance for greater concentration I found in the mountains; and in the next phase, for the sake of my former partner, a practical man from Minnesota unconnected to the rich and powerful (outside law), with a declaration of bankruptcy in his recent past. Someone who had some interests and abilities that overlapped with mine — so was a choice well in line with the 21st century’s ‘assortative mating’ trend; a person I reckoned could fit into my country life more easily than anyone else I knew at the time.
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The recurring phrase ‘substantial evidence’ in the opinion of the appellate court means precisely the opposite of what it does in ordinary English
The slanting and reconfiguration by both the lower and higher court of the true facts of this case, partly through the conduct of the trial — laid out more fully in my appellate brief (p. 9-45) — were every bit as arbitrary and damaging as their applications of law. (See Treatment of Law.)
In legal usage, the word ‘substantial’ which, in plain English, means abundant or significant, denotes the very opposite. ‘Substantial evidence’ means only minimally sufficient proof or ‘more than a mere scintilla’. (See pages 21-22 of my Petition for Rehearing.) The phrase is repeated throughout the First District Court of Appeal’s justification of its opinion upholding the trial court’s ruling — in relation to virtually all crucial matters. There was no response to this protest by me in my Petition for Rehearing by the appellate justices (p.21):
The trial court’s decision was based exclusively on Mr Meredith’s own words – unsupported by witness testimony from others, where it conflicted with mine, or by any documentation disproving the contract implied in fact by the nature of our mutual contributions in our 16-year cohabitation, which was supported by official documents.
There is no denying that the exceptional imbalance of power between plaintiff and defendant — making for a uniquely unfair trial — was tilted in favour of my former partner by every means available to the upper and lower courts.
Can anyone imagine this being allowed to happen if cases were heard and judges obliged to deliver their decisions on the internet?
Updated and revised, 3 September 2017
COTIN 