Opinion
H036146
12-06-2011
E.M., Plaintiff and Respondent, v. M.H., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CP000099)
I. INTRODUCTION
This appeal arises from a petition to establish a parental relationship. Respondent E.M. donated sperm which was used for in vitro fertilization by appellant M.H. The two were never married, although they knew each other before E.M. donated the sperm. M.H. subsequently gave birth to a daughter in late 2004. In September 2008, E.M. filed a petition in the trial court seeking to establish a parental relationship with the child. The trial court determined that E.M. was not the natural father based on Family Code section 7613, subdivision (b) (hereafter section 7613(b)), which generally provides that a man who donates semen to a woman other than the his wife "is treated in law as if he were not the natural father of a child thereby conceived." E.M. filed posttrial motions, including a motion for a new trial, which the court granted.
All further statutory references are to the Family Code unless otherwise indicated.
On appeal, M.H. argues that the trial court erred in granting E.M.'s motion for a new trial. For reasons that we will explain, we determine that the trial court properly granted the motion for a new trial, and therefore we will affirm the order.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Petition to Establish a Parental Relationship
In September 2008, E.M. filed a petition to establish a parental relationship with M.H.'s daughter, who was almost four years old. In a response filed in December 2008, M.H. alleged that E.M. was a "sperm donor" and requested that the trial court determine that he was not the child's parent.
In a written "pre-trial statement," E.M. argued that he was the presumed father under section 7611, subdivision (d) (hereafter section 7611(d)), because he had received the child into his home and had held her out to be his child "as openly as possible since her birth." He further argued that section 7620 applied to him, that he and M.H. "used an assisted reproduction technique . . . for the purpose of becoming legal parents," and that it was "contemplated" that he would be the child's father. Relying on an earlier version of section 7613(b) in effect at the time the child was conceived and born, E.M. argued that this section did not preclude him from being the father of the child, because it only applied to a man who donated semen for use in artificial insemination and he donated sperm for in vitro fertilization.
Section 7620 states: "(a) A person who has sexual intercourse or causes conception with the intent to become a legal parent by assisted reproduction in this state thereby submits to the jurisdiction of the courts of this state as to an action brought under this part with respect to a child who may have been conceived by that act of intercourse or assisted reproduction. [¶] (b) An action under this part shall be brought in one of the following: [¶] (1) The county in which the child resides or is found. [¶] (2) If the child is the subject of a pending or proposed adoption, any county in which a licensed California adoption agency to which the child has been relinquished or is proposed to be relinquished maintains an office. [¶] (3) If the child is the subject of a pending or proposed adoption, the county in which an office of the department or a public adoption agency investigating the petition is located. [¶] (4) If the father is deceased, the county in which proceedings for probate of the estate of the father of the child have been or could be commenced."
In a written brief filed by M.H. before trial, she argued that E.M. donated sperm for in vitro fertilization and that he was "not entitled to legal recognition as [the child's] father" based on the current version of section 7613(b), and Steven S. v. Deborah D. (2005) 127 Cal.App.4th 319 (Steven S.), among other authorities.
B. The September 2009 Trial
On September 23, 2009, the parties and their counsel appeared before the trial court. The court indicated that it had read the parties' "written submissions." The court asked the parties whether, assuming the court accepted all the factual representations made in their briefs, there was "anything else" the court should consider before issuing a ruling. The parties had no additional legal argument but indicated that witness testimony could be provided to the court. The court stated that it would provide a tentative ruling and then the parties could "decide what [they] want[ed] to do." The court tentatively ruled that E.M. was "not the legal father" of the child pursuant to section 7613(b) and Steven S.
E.M. stated that he intended to appeal the trial court's decision and requested a written statement of decision. The court indicated that it was not required to provide a written statement of decision for a hearing that is less than one day. M.H. stated that, in view of E.M.'s intention to appeal, the parties should stipulate to certain agreed upon facts. The parties then stipulated that (1) they were never married, (2) E.M. "was the sperm donor," (3) "conception occurred through in vitro fertilization," and (4) E.M. "donated his sperm to a licensed physician or fertility clinic." Following a further discussion between the court and the parties about the facts of the case, both parties were sworn in and the court proposed that the parties proceed by way of an offer of proof.
E.M.'s counsel stated that E.M. would testify as follows. E.M. and M.H. "entered into an in vitro fertilization contract . . . in which [he] donated semen and is the biological father of the child. E.M. contributed more than $30,000 to the costs of the in vitro fertilization procedure. It was his understanding that he would be considered the child's parent. With respect to the in vitro fertilization process, "an egg donor was used and there was a waiver of parentage by the egg donor, but there was no waiver of parentage" by E.M. As a result of the procedure, M.H. became pregnant and the child was born in late 2004. The child's birth certificate was signed by both E.M. and M.H., and E.M. is listed as the father and M.H. is listed as the mother. The child's name includes M.H.'s last name and E.M.'s last name. Since the child's birth, E.M. "has taken a full and active role as her father, she knows him as daddy, she calls him daddy." M.H. has referred to E.M. as the child's father when talking to the child. E.M. has paid child support without a court order to do so, he has "regular visitation," and there is a current visitation order. E.M. "has held the child out to be his since before her birth." He "believes that [the child] will suffer emotionally in the event it is found that he is not the father, because it is his belief that his role in her life will be either limited or terminated." At the end of counsel's offer of proof, E.M. indicated that he agreed with everything that counsel had stated to the trial court.
Counsel for M.H. stated that M.H. would testify as follows. M.H. asked E.M. "to become a sperm donor" and "they discussed it," but "they made no agreement . . . that he would be the natural father of the child. M.H. "made it specifically clear to [him] that his sole role would be as a sperm donor and he would have no parental rights to the child." E.M. did not sign any contract that "creates any parental rights." "The egg donor contract was only signed by [M.H.] as she is the only one required to sign it." E.M. did not pay $30,000 towards the cost of the fertilization procedure. He did pay approximately $30,000, but not until two years later. E.M. has not provided "regular support payments." The reason that E.M. is listed on the child's birth certificate "is not known to [M.H.] other than for the fact that she was in recovery and does not recall even being asked who was the father by any nurse or physician." E.M. "has not played an active role in [the child's] life," and for the first two or three years, he "would only infrequently come over to see how [the child] was doing." The "only reason that there has been structured visitation now is because [E.M.] filed this proceeding and the court has ordered there be visitation . . . as determined through Family Court Services." At the conclusion of counsel's offer of proof, M.H. indicated that counsel's statements to the trial court were accurate.
Following the parties' offers of proof, M.H. was cross-examined. Regarding the child's birth certificate, M.H. testified that her signature is on the document, but she does not remember signing it. Regarding health insurance, M.H. has "covered [the child's] health insurance since she was born." Although E.M. "wanted to put [the child] on Kaiser" and M.H. believed that he had done so, M.H. "never activated" or "used that" coverage. She "paid for [the child's] health insurance . . . ." With respect to E.M.'s payments in conjunction with the in vitro fertilization process, he did make payments to various labs and a doctor, but those were "all related to sperm donation." M.H. "paid the egg donor for the egg donation" and "also paid for [the egg donor's] treatments." E.M. did give money to M.H. during the time period of the in vitro fertilization process, but the money "was not associated with that" and "had nothing to do with the IVF." E.M. was "paying . . . back" M.H. "for some money that he owed" her.
When M.H. was cross-examined regarding whether she and E.M. entered into an agreement with the "in vitro fertilization clinic," counsel for M.H. indicated that he would stipulate that there was "an agreement that both parties signed with the clinic." He argued, however, that the agreement had "no legal effect" regarding the issue of "parentage." On further cross-examination, M.H. testified that she "signed a legal document from the clinic that arranged the egg donor, that basically said [she] was taking . . . legal parentage or custody of the child that would result from the egg," but that she did not sign a similar agreement with E.M.
M.H. thereafter testified upon direct examination that E.M. had given her and the child $28,000 over the course of the child's life, but the money was not "child support" or "something that" M.H. had "demanded." Rather, "it was something that [E.M.] wanted to provide for" the child.
E.M. testified after M.H. He stated that he paid M.H. one check for $30,000 to "reimburse her for or to pay for certain expenses related to the egg purchase . . . and the implantation of that egg in her body." He made the payment "in anticipation that the offspring that would be conceived . . . would be [their] child and—[¶] . . . [¶] . . . [he] would be contributing a great deal of money to." He believed that he had paid "at least $100,000 over the period of time starting before [the child's] conception and continuing until today."
After E.M. testified, M.H.'s counsel made a further offer of proof. Counsel stated that M.H. would testify that she loaned E.M. approximately $50,000 prior to the child's conception and that his payments "were substantially repayments for the moneys that she loaned him."
In response to the offer of proof and upon inquiry by his counsel, E.M. stated, "I think this is an extreme fabrication."
The parties then submitted the matter. The trial court stated that it "accept[ed] the factual representations made by [E.M.], specifically that . . . he's identified as the father" on the child's birth certificate. The court further found that "although the amounts are unclear," E.M. "has contributed financially for the benefit of the minor child," "the minor child has been held out to be his child," and she "refers to him as 'daddy.' " The court stated that "notwithstanding all of that, the Court finds itself constrained by Family Code Section 7613(b) and the case of Steven S.," and "those authorities compel the Court to make a finding that [E.M.] is not the legal father of the minor child." The court further indicated that its factual findings included those facts to which the parties had stipulated. The court directed M.H.'s counsel to prepare an order.
C. E.M.'s "Motion to Enter Judgment Different From Announced"
On February 25, 2010, E.M., through new counsel, filed a "Motion to Enter Judgment Different From Announced." E.M. also sought to "postpone" the trial court from "entering a judgment on the trial of September 23, 2009 pending a hearing" on the motion.
In a supporting memorandum of points and authorities, E.M. first argued that, because judgment had not yet been entered, the trial court may "enter a judgment different from what was announced at the time of trial." Second, regarding the underlying issue of parentage, E.M. contended that "a man who conceives a child via in vitro fertilization with his unmarried partner is entitled to paternal rights" based on, among other authorities, K.M. v. E.G. (2005) 37 Cal.4th 130 (K.M.) and the state constitutional right to equal protection. Third, he asserted that he was the presumed father under section 7611(d). Fourth, E.M. argued that it was in the child's "best interests to have two parents . . . ." E.M. submitted to the court a proposed "Statement of Facts and Statement of Decision" in which he would be found the child's "natural father."
Also in support of the motion, E.M. filed a declaration containing numerous facts not previously presented to the trial court. The declaration included a description of E.M.'s relationship with M.H., the circumstances under which the child was conceived and born, the nature of E.M.'s involvement during M.H.'s pregnancy, the nature of his relationship with the child, the extent of his participation in the child's life, the amount he paid for the "costs of the donor egg and some of the lab fees," the amount he gave M.H. each year between 2005 and 2008 for the child's support, the amount he expended for health insurance coverage for the child between 2006 and 2009, and his views about himself as the child's father and the best interests of the child.
Attached to E.M.'s declaration were copies of the following documents not previously admitted into evidence: (1) a document signed and initialed by M.H. and E.M. entitled in part, "Informed Consent Recipient Couple For Transfer Of Embryos Resulting From Donor Egg In Vitro Fertilization"; (2) various checks reflecting payments by E.M. to M.H. or to third parties for donor egg costs or lab fees; (3) the child's birth certificate; and (4) checks reflecting payments by E.M. to M.H. and/or the child between 2005 and 2008.
E.M. also apparently submitted in support of the motion a declaration from his prior trial counsel concerning her two heart attacks in October 2009, "triple by-pass surgery" thereafter, and a third heart attack in April 2010. According to the declaration, E.M.'s former counsel's office contacted counsel's clients in 2009 and gave them "notice to obtain new counsel."
The declaration in the record on appeal is not file-stamped. The text of the declaration also does not indicate the date on which the declaration was purportedly signed. Handwritten in pencil in the upper right-hand corner of the declaration is "6/18/10."
M.H. filed opposition to E.M.'s motion for a "judgment different from announced." M.H. first argued that E.M.'s declaration should be stricken, as well as any argument in his supporting memorandum related to the declaration, and the trial court should only consider the evidence introduced at trial before the matter was submitted. Second, M.H. contended that the trial court made a final, not tentative, ruling that E.M. was not the father of the child, and the court did not have the authority to change that ruling. Third, she asserted that K.M. and the other cases cited by E.M. were distinguishable in significant respects from the instant case. Fourth, M.H. argued that section 7613 (b) and Steven S. precluded a paternity claim by E.M., and that section 7613(b) "supercedes any presumptions created by" section 7611. M.H. also filed a declaration disputing many of the facts asserted in E.M.'s declaration, including the circumstances under which the child was conceived, the nature of E.M.'s involvement in her pregnancy, the nature and extent of E.M.'s participation in the child's life, the purpose of E.M.'s payments to M.H. or third parties, and the child's needs regarding insurance coverage.
E.M. filed a reply brief in support of his motion for a "different judgment than announced at trial." Among other things, he argued that even if the trial court determined that section 7613(b) precluded him from having parental rights, the court may still find that he is a presumed parent pursuant to section 7611(d). E.M. also stated that he had "withdrawn his request for a statement of decision and ha[d] submitted a proposed order in its place . . . ." The proposed judgment submitted by E.M. was similar to the proposed "Statement of Facts and Statement of Decision" that he had previously submitted with his moving papers, and it proposed that he be found to be the child's "natural father." E.M. also filed another declaration, this time disputing some of the facts set forth in M.H.'s declaration.
At the hearing on E.M.'s motion on June 25, 2010, the trial court refused to strike E.M.'s declaration and stated that it had the "authority to enter a judgment different from the one announced at trial." The court heard argument from counsel and ultimately concluded that "the Court got it right on September 23rd." The court requested that M.H. prepare an order and judgment.
D. The Judgment
In a judgment dated June 25, 2010, and filed on July 6, 2010, the trial court determined that, based on section 7613(b) and Steven S., E.M. "is not the natural father of the minor child and has no rights under the law a natural father would otherwise have." The judgment also contained the following factual findings: (1) E.M. and M.H. "were never married," (2) E.M. "provided sperm through a licensed physician and surgeon/fertility clinic for use in artificial insemination or in vitro fertilization" of M.H., (3) "[t]he minor was conceived through in vitro fertilization," (4) E.M. "is listed on the minor's birth certificate," (5) "[t]hough the amount is disputed [E.M.] financially contributed to the minor's needs," (6) E.M. "held the minor out to be his child," and (7) "[t]he minor refers to [E.M.] as 'daddy.' " M.H. served E.M. with a copy of the judgment on July 7, 2010.
On July 28, 2010, the order denying E.M.'s motion for a "judgment different from announced" was filed. In the order, the court stated that it was "convinced its initial ruling was correct."
E. The Motion to Vacate Judgment and for a New Trial
In the meantime, on July 19, 2010, E.M. filed a motion to vacate judgment and for a new trial ("motion for a new trial" or "new trial motion") on his "paternal rights over" the child. In a supporting memorandum of points and authorities, E.M. argued that he was entitled to a new trial because (1) the trial court's decision was "against law," (2) there was "[i]rregularity in the proceedings" or "abuse of discretion by which" he "was prevented from having a fair trial," and (3) an "[e]rror in law" occurred at the trial. (Code Civ. Proc., § 657, subds. 1, 6 & 7.)
Regarding his first contention that the trial court's decision was "against law" (Code Civ. Proc., § 657, subd. 6), E.M. asserted that he presented substantial evidence at trial and in his motion for a "judgment different from announced" that he is a "presumed parent" and the court "made findings consistent with presumed parentage" under section 7611(d); there was no "legal basis" for the court's conclusion that section 7613(b) "supersedes" section 7611; section 7613(b) does not apply where, as here, the parties "intended to conceive and raise a child together," as explained in K.M.; the court failed to apply a "rule of intent to determine whether E.M. intended to become a parent" and the evidence "demonstrated his intent to be a parent"; and denying E.M. "paternal rights . . . contravenes the purpose of California's parentage laws," which is to "ensure that children's physical and emotional needs are met by two legal parents."
Regarding his second contention that he was prevented from having a fair trial, E.M. asserted that there was an"[i]rregularity in the proceedings" (Code Civ. Proc., § 657, subd. 1) based on his trial counsel's medical condition which left her "unable to adequately represent [him] at trial." E.M. also contended that he was prevented from having a fair trial when the trial court abused its discretion and denied him equal protection under the California Constitution by failing to apply legal precedent involving women in "substantially similar circumstances."
Regarding his third contention that an "error in law" occurred at the trial (Code Civ. Proc., § 657, subd. 7), E.M. referred to all of the foregoing reasons, and also asserted that the trial court failed to provide a statement of decision.
In support of his motion for a new trial, E.M. filed a declaration that contained many facts that had not been admitted into evidence during the September 2009 trial on his petition to establish a parental relationship. Although the declaration contained many of the same facts that were in the declaration he previously filed in support of the motion for a judgment different from announced, it also contained facts that E.M. had not previously presented to the trial court, including regarding his involvement during the in vitro fertilization process, his relationship with the child, and observations about his counsel during trial.
M.H. filed written opposition to the motion for a new trial. She contended that a new trial motion based on subdivision 6 of Code of Civil Procedure section 657 must be based on "minutes of the court, not affidavits," and consequently E.M.'s motion under subdivision 6 must be "summarily denied." She further argued that his motion under subdivision 1 of Code of Civil Procedure section 657 should be "summarily denied" because he did not provide a supporting affidavit containing admissible evidence. Regarding the substance of E.M.'s motion, M.H. asserted that the trial court's findings were "consistent with the law"; there was no irregularity in the proceedings nor did the court abuse its discretion and deny E.M. equal protection; and E.M.'s request for a written decision was defective, the court did issue a statement of decision, and in any event, the court may "remed[y]" the situation by issuing a statement of decision "at this time."
On August 27, 2010, a hearing was held on E.M.'s motion for a new trial. E.M.'s counsel indicated that she was "submit[ting] a request for statement of decision" for the current hearing and for the trial of September 23, 2009. A copy of the request is not contained in the record on appeal.
Regarding E.M.'s motion for a new trial, the court "preliminarily" indicated that the motion should be granted. Among other things, the court indicated that it had "reread" several cases, including K.M. Regarding the initial trial, the court stated that it ruled in M.H.'s favor "in light of" section 7613(b) and Steven S. The court "thought that [E.M.] was a sperm donor" and "based on that statute, he's precluded from being a father." However, "[h]aving reviewed" K.M., the court stated: "I'm concerned that at the hearing I didn't pay enough attention to issues such as what the parties intended. Did they agree to have a child together. Were they, in effect, agreeing to jointly raise this child. And there's some stark factual issues that I think need credibility resolution." The court believed that M.H. "paint[ed] a very different picture of the whole transaction than" E.M. The court observed that "both sides made offers of proof and the respective clients affirmed the factual representations" of their counsel, but the court believed that "the case deserves somebody making credibility resolutions on the issues of what the parties intended to do, what really happened."
After providing a preliminary indication of how it would rule, the trial court heard argument from counsel. The court then stated that it was vacating the judgment and granting a new trial. The court explained: "This is such an important issue . . . and I recognize . . . that I made the decision back in September, reaffirmed it after the June 25th hearing. But I really did take the time, and I reflected more than I did. And I probably should have reflected more before the June hearing. But I had the time to really thoroughly review this. And I want to get it right. And I reflected back at the September trial, but going into the hearing, I thought it was a done deal. [¶] I thought the fact that we had a sperm donor, a physician, and the Steven S. . . . decision, it was done. I . . . don't believe that I gave enough consideration to all of the other pieces of evidence as to whether or not the factual representations being made to the court were credible. [¶] The parties are painting such a different picture of the transaction that, if I had to do it again, I would have insisted that the individual parties testify under oath so I can evaluate their credibility because somebody is distorting the facts here." The court later stated: "I just feel like at the trial in September of last year not enough consideration was given to the credibility of the factual assertions about what the intent of the parties were. . . . [D]id they decide they were jointly going to raise the child." Lastly, the court determined that a statement of decision was not "necessary" for the motion for new trial and, in light of the granting of the motion, a statement of decision was also not "necessary" for the September 2009 proceeding.
The minute order entered for the August 27, 2010 hearing on E.M.'s motion for a new trial states: "The court after reconsideration of its previous ruling, grants [E.M.'s] motion for a new trial." The written order subsequently filed by the court on September 21, 2010, states that the motion "should be granted on the grounds that there was any sufficiency of the evidence to justify the decision and the decision is against the law."
On October 15, 2010, M.H. filed a timely notice of appeal from the order granting E.M.'s motion for a new trial. An order granting a motion for a new trial is an appealable order. (Code Civ. Proc., § 904.1, subd. (a)(4).)
III. DISCUSSION
On appeal, M.H. contends that the trial court's new trial order was defective and that there was otherwise no basis for granting E.M. a new trial. We first consider the substance of the trial court's order before turning to the other grounds asserted in E.M.'s motion for a new trial.
A. The Orders Regarding E.M.'s Motion for a New Trial Were Defective
As we have recited above, the trial court's August 27, 2010 minute order granting a new trial states: "The court after reconsideration of its previous ruling, grants [E.M.'s] motion for a new trial." The court's written order filed thereafter on September 21, 2010, states that the motion "should be granted on the grounds that there was any sufficiency of the evidence to justify the decision and the decision is against the law."
On appeal, M.H. first contends that the trial court's August 27, 2010 minute order was defective because it did not state the statutory grounds for a new trial or any reasons for the court's decision as required by Code of Civil Procedure section 657. Second, although the September 21, 2010 written order indicated the statutory grounds, it still failed to offer any reasons, and it was untimely under Code of Civil Procedure sections 657 and 660. Moreover, the September 21, 2010 order refers to "sufficiency of the evidence" as one of the two grounds upon which the motion was being granted, but that ground was not a basis for E.M.'s motion.
E.M. responds that the September 21, 2010 written order was sufficient, timely, and based on grounds that he had identified in his supporting memorandum.
In evaluating the parties' contentions, we first set forth the applicable legal principles regarding a motion for new trial. "The authority of a trial court in this state to grant a new trial is established and circumscribed by statute. [Citation.]" (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633 (Oakland Raiders).)Code of Civil Procedure section 657 sets forth seven grounds for a new trial motion, including: "Irregularity in the proceedings"; "Insufficiency of the evidence to justify the . . . decision, or the . . . decision is against law"; and "Error in law." (Code Civ. Proc., § 657, subds. 1, 6 & 7.)
A party seeking to move for a new trial must file and serve a notice of intention to move for a new trial "designating the grounds upon which the motion will be made . . . ." (Code Civ. Proc., § 659.) This notice is "deemed to be a motion for a new trial on all the grounds stated in the notice." (Ibid.)In general, "the motion for new trial can only be granted on a ground specified in the notice of intention to move for a new trial. [Citations.]" (Wagner v. Singleton (1982) 133 Cal.App.3d 69, 72 (Wagner).)
Code of Civil Procedure section 660 sets forth the timeframe by which the trial court must rule on the new trial motion. This section provides in relevant part: "the power of the court to rule on a motion for a new trial shall expire . . . 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, . . . or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court. A motion for a new trial is not determined within the meaning of this section until an order ruling on the motion (1) is entered in the permanent minutes of the court or (2) is signed by the judge and filed with the clerk. The entry of a new trial order in the permanent minutes of the court shall constitute a determination of the motion even though such minute order as entered expressly directs that a written order be prepared, signed and filed. The minute entry shall in all cases show the date on which the order actually is entered in the permanent minutes, but failure to comply with this direction shall not impair the validity or effectiveness of the order." (Code Civ. Proc., § 660.)
An order granting a new trial motion must "state not only the ground upon which the motion is granted but also the reasons for granting the motion on that ground." (Oakland Raiders, supra, 41 Cal.4th at p. 633, italics added.) Section 657 provides: "When a new trial is granted, on all or part of the issues, the court shall specify the ground or grounds upon which it is granted and the court's reason or reasons for granting the new trial upon each ground stated. [¶] . . . [¶] . . . [I]f the motion is granted [the order] must state the ground or grounds relied upon by the court, and may contain the specification of reasons. If an order granting such motion does not contain such specification of reasons, the court must, within 10 days after filing such order, prepare, sign and file such specification of reasons in writing with the clerk. The court shall not direct the attorney for a party to prepare either or both said order and said specification of reasons." (Code Civ. Proc., § 657.)
The California Supreme Court has explained that " 'the words "ground" and "reason" have different meanings.' [Citation.] The word 'ground' refers to any of the seven grounds listed in section 657. [Citation.] A statement of grounds that reasonably approximates the statutory language is sufficient. [Citations.] The statement of 'reasons,' on the other hand, should be specific enough to facilitate appellate review and avoid any need for the appellate court to rely on inference or speculation. [Citations.]" (Oakland Raiders, supra, 41 Cal.4th at p. 634.) A reason that "simply reiterates the ground of the ruling itself is not sufficient. (Scala v. Jerry Witt & Sons, Inc. (1970) 3 Cal.3d 359, 367.)
A minute order that "determine[s]" a new trial motion (Code Civ. Proc., § 660) is defective, but not void, if it fails to state the grounds for granting the motion. (Id., § 657; Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 899-900 (Sanchez-Corea); Fergus v. Songer (2007) 150 Cal.App.4th 552, 566 (Fergus).) If a second order that purports to rule on the motion and state the ground for granting the motion is filed outside the 60-day jurisdictional period, the second order is "ineffective as an act in excess of jurisdiction." (Sanchez-Corea, supra, 38 Cal.3d at p. 905; see also id. at p. 903 [second order is "defective as in excess of the 60-day jurisdictional period"].) In other words, "[t]he order ruling on the motion must be entered within the 60-day period ([Code Civ. Proc.,] § 660) and must itself state the ground for granting a new trial. ([Id.,] § 657.)" (Sanchez-Corea, supra, 38 Cal.3d at p. 903.)
The initial, defective minute order is also not cured by a second order containing grounds and reasons, where the second order is filed more than 10 days later but within the 60-day statutory period of Code of Civil Procedure section 660. (Fergus, supra, 150 Cal.App.4th at pp. 563, 565-566; see Oakland Raiders, supra, 41 Cal.4th at p. 634.) "California courts have consistently required strict compliance with section 657. Its requirement that the statement of reasons be filed no later than 10 days after the order granting a new trial is jurisdictional, and a statement of reasons filed more than 10 days after the order is ineffective. [Citations.] Substantial compliance with the statute is not sufficient. (La Manna v. Stewart[ (1975) 13 Cal.3d 413,] 419-423 [(La Manna)][oral statement of reasons set down in reporter's transcript does not comply with statute] . . . .) The statement of reasons must refer to evidence, not ultimate facts. [Citation.] And the appellate court cannot remand the case to permit the trial court to correct an insufficient statement of reasons. [Citations.]" (Oakland Raiders, supra, 41 Cal.4th at pp. 634-635.)
1. The August 27, 2010 Minute Order
In this case, the August 27, 2010 minute order states, "The court after reconsideration of its previous ruling, grants [E.M.'s] motion for a new trial." This minute order "determined" E.M.'s motion for a new trial because it granted the motion. (Code Civ. Proc., § 660.) This initial order, however, did not state the ground(s) upon which the motion was granted and the reason(s) therefor. In the absence of a statement of the grounds for granting the motion, this initial order is defective but not void. (Code Civ. Proc., § 657; Sanchez-Corea, supra, 38 Cal.3d at p. 903; Fergus, supra, 150 Cal.App.4th at p. 566.)
2. The September 21, 2010 Written Order
Before we consider whether the content of the subsequent written order filed on September 21, 2010, cured the initial defective minute order, we first address whether this second order was timely filed. M.H. argues that the second order was filed outside the 60-day jurisdictional period in which a court may rule on a new trial motion (Code Civ. Proc., § 660), based on the assumption that this period started to run on July 7, 2010, the day she served E.M. with a file-stamped copy of the judgment. In response, E.M. asserts that the filing of this judgment by M.H. was "improper," and that notice of entry of judgment "could not have been provided earlier than July 28, 2010." Thus, the court's September 21, 2010 order concerning the new trial motion was timely, as it was filed less than 60 days later. In reply, M.H. argues that even assuming notice of entry of judgment was provided on July 28, 2010, the court's September 21, 2010 order was still untimely, based on the language of Code of Civil Procedure section 660. We agree with M.H.
As we set forth above, Code of Civil Procedure section 660 provides in relevant part: "the power of the court to rule on a motion for a new trial shall expire . . . 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, . . . or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial." (Italics added.) "The words of [Code of Civil Procedure] section 660 are clear and unambiguous: where no notice of entry of judgment has been mailed or served before the filing of notice of intention to move for a new trial—'if such notice [of entry of judgment] has not theretofore been given'—the 60-day period begins to run from the date of filing of the notice of intention to move for a new trial. (Italics added.)" (Green v. Laibco, LLC (2011) 192 Cal.App.4th 441, 447 (Green).)
If, as E.M. now asserts, notice of entry of judgment was not provided any earlier than July 28, 2010, then at the time he filed his notice of motion for a new trial on July 19, 2010, notice of entry of judgment had not "theretofore been given." (Code Civ. Proc., § 660.) Consequently, the 60-day period began to run on July 19, 2010, the date that E.M. filed his notice of motion for a new trial, and the trial court's September 21, 2010 order thereafter was untimely. (See Green, supra, 192 Cal.App.4th at p. 447.) Where a second order that purports to rule on the motion and state the ground for granting the motion is filed outside the 60-day jurisdictional period, it is "ineffective as an act in excess of jurisdiction." (Sanchez-Corea, supra, 38 Cal.3d at p. 905.)
We also observe that the September 21, 2010 order, which states that the new trial motion "should be granted on the grounds that there was any sufficiency of the evidence to justify the decision and the decision is against the law," fails to specify the reasons for granting the motion for each ground identified in that order, as required by Code of Civil Procedure section 657. (Oakland Raiders, supra, 41 Cal.4th at pp. 633-635.) Moreover, the September 21, 2010 order was filed more than 10 days after the minute order granting the motion, and thus the subsequent order would have been ineffective even if it had contained a specification of reasons. (Oakland Raiders, supra, 41 Cal.4th at p. 634; Fergus, supra, 150 Cal.App.4th at pp. 563, 565-566.)
E.M. acknowledges that the trial court did not specify the reasons for granting the new trial motion, but contends that the "court's reasons were clearly stated on the record" during the August 27, 2010 hearing. However, "an oral recital, no matter how thoroughly it may have been prepared, cannot amount to compliance in any degree, 'substantial' or otherwise, with a statutory directive that such a statement be in writing," as required by Code of Civil Procedure section 657. (La Manna, supra, 13 Cal.3d at p. 423; accord Ballou v. Master Properties No. 6 (1987) 189 Cal.App.3d 65, 72.)
In sum, we determine that the August 27, 2010 minute order, which states that "[t]he court after reconsideration of its previous ruling, grants [E.M.'s] motion for a new trial," is defective because it failed to state the grounds for granting the motion, but is not void. We further determine that the written order filed on September 21, 2010, which states that the motion "should be granted on the grounds that there was any sufficiency of the evidence to justify the decision and the decision is against the law," is ineffective because it was filed outside the 60-day jurisdictional period, and otherwise failed to cure the initial defective minute order. Having made these determinations, we now turn to the effect that the defective, but not void, minute order has on the issues in this appeal.
B. E.M., the Respondent, Has the Burden of Persuasion on Appeal
Ordinarily the appellant, here M.H., has the burden on appeal to demonstrate error. As we will explain, because the minute order granting E.M.'s new trial motion is defective, E.M. as respondent, and not M.H. as appellant, has the burden of persuasion on appeal in this case.
Code of Civil Procedure section 657 provides that an order granting a new trial generally "shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons . . . ." (Code Civ. Proc., § 657.) "If an order granting a new trial does not effectively state the ground or the reasons, the order has been reversed on appeal where there are no grounds stated in the motion other than insufficient evidence or excessive or inadequate damages. [Citations] If, however, the motion states any other ground for a new trial, an order granting the motion will be affirmed if any such other ground legally requires a new trial. [Citations.] [¶] Where, as here, the trial court has failed to make a timely specification of any ground for the new trial order, the burden is on the movant to advance any grounds stated in the motion upon which the order should be affirmed, and a record and argument to support it. [Citations.]" (Sanchez-Corea, supra, 38 Cal.3d at pp. 905-906, italics added; see also Oakland Raiders, supra, 41 Cal.4th at p. 641.)
Regarding appellate review, Code of Civil Procedure section 657 provides in relevant part: "On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons, except that (a) the order shall not be affirmed upon the ground of the insufficiency of the evidence to justify the . . . decision, . . . unless such ground is stated in the order granting the motion and (b) on appeal from an order granting a new trial upon the ground of the insufficiency of the evidence to justify the . . . decision, . . . it shall be conclusively presumed that said order as to such ground was made only for the reasons specified in said order or said specification of reasons, and such order shall be reversed as to such ground only if there is no substantial basis in the record for any of such reasons."
Here, we have determined that the trial court failed to timely specify the ground(s) for granting E.M.'s new trial motion, as the August 27, 2010 minute order contained no grounds, and the September 21, 2010 order was filed outside the 60-day jurisdictional period and ineffective. Consequently, E.M. has the burden of persuasion on appeal to show that the trial court's order granting the new trial motion should be affirmed on any of the grounds stated in his motion. (Sanchez-Corea, supra, 38 Cal.3d at pp. 905-906; see also Oakland Raiders, supra, 41 Cal.4th at p. 641.)
C. The Grounds Stated in E.M. 's New Trial Motion
E.M.'s new trial motion was based on the following three grounds: the decision was against law, irregularities in the proceedings, and error in law. (Code Civ. Proc., § 657, subds. 1, 6 & 7.) We consider the latter ground first, because we determine that resolution of whether an error in law occurred is dispositive.
A new trial motion may be granted pursuant to Code of Civil Procedure section 657, subdivision 7 for an "[e]rror in law, occurring at the trial and excepted to by the party making the application." The case of Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187 (Sole Energy Co.) illustrates one circumstance in which a new trial motion may be granted for an error in law. In that case, the trial court granted the plaintiff's motion for new trial after determining that it had " 'made an error and misapplied the law' " when it granted the defendants' motions for summary judgment. (Id. at p. 192.) The trial court believed that it should have treated the motions for summary judgment, which attacked the plaintiff's complaint, as motions for judgment on the pleadings instead and granted leave to amend. The Court of Appeal affirmed the order granting the motion for a new trial. The appellate court observed that the trial court had determined that "the manner in which [the trial court] arrived at its decision on the issue [of how the motions for summary judgment should be treated] was an error of law." (Id. at p. 197.) The appellate court concluded that "[t]he trial court could grant the motion for a new trial to correct that error." (Ibid.; see also Barr v. Mountjoy (1942) 50 Cal.App.2d 40, 43 (Barr) [the trial court's failure to consider an element that was "vital" to the trial court's decision amounted to error in law, which justified the order granting a new trial].)
Before determining whether error in law justified the granting of E.M.'s new trial motion in this case, we first consider the applicable standard of review, which the parties dispute.
D. The Standard of Review
M.H. contends that independent or de novo review is required where, as here, the trial court failed to timely file an order containing the grounds and reasons for granting the new trial motion. E.M. contends that abuse of discretion is the appropriate standard of review.
Regarding the standard of review, the California Supreme Court stated in Oakland Raiders: "When the trial court provides a statement of reasons as required by [Code of Civil Procedure] section 657, the appropriate standard of judicial review is one that defers to the trial court's resolution of conflicts in the evidence and inquires only whether the court's decision was an abuse of discretion. [Citations.] But when there is no statement of reasons, an appellate court's use of an abuse of discretion standard of review would subvert the purposes that [the California Supreme Court] has identified as underlying [Code of Civil Procedure] section 657's statement of reasons requirement." (Oakland Raiders, supra, 41 Cal.4th at p. 636.) Those purposes are " 'to promote judicial deliberation before judicial action' " and " 'to make the right to appeal from the order more meaningful' " in that the appellant " 'need only address himself [or herself] to those asserted deficiencies in the proof which are specified as reasons for the order.' " (Id. at pp. 636-637.) "[T]he absence of a statement of reasons calls for independent review of the trial court's order granting a motion for a new trial." (Id. at p. 640.) "The reviewing court should not . . . defer to the trial court's resolution of conflicts in the evidence, or draw all inferences favorably to the trial court's decision, because in the absence of a statement of reasons, the record does not show whether the trial court resolved those conflicts or drew those inferences." (Ibid.)Independent review in this context means "a form of review that does not defer to the trial court's inferred resolution of conflicts in the evidence." (Id. at p. 640, fn. 4.)
E.M. contends that the abuse of discretion standard of review should be applied in this case, rather than independent review, because Oakland Raiders is applicable only to cases involving jury misconduct as a basis for the new trial motion. He asserts, however, that under any standard of review, a new trial was properly granted.
M.H. replies that independent review is not limited to cases involving jury misconduct as a ground for the new trial motion. M.H. contends that in any event, the new trial order may not be sustained under an abuse of discretion standard.
In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, the California Supreme Court explained that although "as a general matter, orders granting a new trial are examined for abuse of discretion," "any determination underlying any order is scrutinized under the test appropriate to such determination." (Id. at p. 859.) When a trial court grants a motion for a new trial based on an error in law occurring in the trial, the determination by the trial court is reviewed de novo. (Id. at p. 860.) The California Supreme Court further explained that "[t]here is no discretion to adopt a reading, or make an application, of decisional law that is inconsistent with the law itself. [Citation.] Any such reading or application must necessarily be deemed an abuse. [Citation.]" (Ibid.)
With these principles in mind, we turn to the question of whether an error in law warranted a new trial in this case.
E. Error in Law
In determining whether an error in law in this case warrants a new trial, we will not consider the declarations that E.M. filed after the parties submitted the matter at the conclusion of the initial trial on September 23, 2009. (See Code Civ. Proc., §§ 658 [a motion for new trial based upon the ground of an error in law "must be made on the minutes of the court"], 660 ["when the motion is made on the minutes, reference may . . . be had to any depositions and documentary evidence offered at the trial and to the report of the proceedings on the trial taken by the phonographic reporter, or to any certified transcript of such report"]; Lauren H. v. Kannappan (2002) 96 Cal.App.4th 834, 839, fn. 4 [" 'minutes of the court' include the records of the proceedings entered by the judge or courtroom clerk, showing what action was taken and the date it was taken"]; see also Code Civ. Proc., §§ 660 [on hearing of new trial motion, "reference may be had in all cases to the pleadings and orders of the court on file"], 420 ["pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the Court"]).
Turning to the question of whether an error in law occurred, the trial court indicated at the hearing on E.M.'s new trial motion that it had made an error of law and misapplied the law when it determined at the initial trial that E.M. was not the "natural father" of the child. The court recognized at the hearing that the issue of whether E.M. was a parent was "such an important issue," and the court "want[ed] to get it right." The court explained that at the initial trial, the court had believed, based on section 7613(b) and Steven S., that E.M. was precluded from being determined a parent of the child. However, upon further review of K.M. and other authorities, the court realized that on the initial trial of this issue, the court did not give "enough consideration" as to the intent of the parties and the parties' credibility as to intent. With the correct legal standard in mind, the court indicated that it would have "insisted that the individual parties testify under oath" so that the court could evaluate their credibility, where it appeared to the court that "somebody is distorting the facts here."
If "the manner in which [the trial court] arrived at its decision [that E.M. did not have a parental relationship with the child] was an error of law," "[t]he trial court could grant the motion for a new trial to correct that error." (Sole Energy Co., supra, 128 Cal.App.4th at p. 197; see also Barr, supra, 50 Cal.App.2d at p. 43.) We therefore turn to the question of whether an error in law occurred at the initial trial.
1. Parentage
The issue of whether E.M. is the child's parent is governed by the Uniform Parentage Act (UPA). (§ 7600 et seq.) The UPA defines the "[p]arent and child relationship" as "the legal relationship existing between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. The term includes the mother and child relationship and the father and child relationship." (§ 7601.) As explained by the California Supreme Court, "[o]ne purpose of the UPA was to eliminate distinctions based upon whether a child was born into a marriage, and thus was 'legitimate,' or was born to unmarried parents, and thus was 'illegitimate.' [Citation.] Thus, the UPA provides that the parentage of a child does not depend upon ' "the marital status of the parents" ' [citation], stating: 'The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.' (§ 7602.) [¶] The UPA contains separate provisions defining who is a 'mother' and who is a 'father.' Section 7610 provides that '[t]he parent and child relationship may be established . . . : [¶] (a) Between a child and the natural mother . . . by proof of her having given birth to the child, or under this part.' Subdivision (b) of section 7610 states that the parental relationship '[b]etween a child and the natural father . . . may be established under this part.' [¶] Section 7611 provides several circumstances in which '[a] man is presumed to be the natural father of a child,' including: . . . if '[h]e receives the child into his home and openly holds out the child as his natural child' (§ 7611, subd. (d))." (Elisa B. v. Superior Court (2005) 37 Cal.4th 108, 116 (Elisa B.).) Subject to certain exceptions not relevant here, "a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence." (§ 7612, subd. (a).)
At the same time, through section 7613(b), "the California Legislature has afforded unmarried as well as married women a statutory vehicle for obtaining semen for artificial insemination without fear that the donor may claim paternity, and has likewise provided men with a statutory vehicle for donating semen to married and unmarried women alike without fear of liability for child support." (Jhordan C. v. Mary K. (1986) 179 Cal.App.3d 386, 392 [discussing former Civil Code section 7005, the predecessor to section 7613(b)].) The 1994 version of section 7613(b), which was in effect prior to the time the child in this case was conceived, and at the time the child was born in 2004, provided: "The donor of semen provided to a licensed physician and surgeon for use in artificial insemination of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived." (Stats. 1992, ch. 162, § 10, operative Jan. 1, 1994.) After the child in this case was born, section 7613(b) was amended effective January 1, 2009, and now provides: "The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in artificial insemination or in vitro fertilization of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived." (§ 7613(b), italics added.)
Section 7613, subdivision (a) provides: "If, under the supervision of a licensed physician and surgeon and with the consent of her husband, a wife is inseminated artificially with semen donated by a man not her husband, the husband is treated in law as if he were the natural father of a child thereby conceived. The husband's consent must be in writing and signed by him and his wife. The physician and surgeon shall certify their signatures and the date of the insemination, and retain the husband's consent as part of the medical record, where it shall be kept confidential and in a sealed file. However, the physician and surgeon's failure to do so does not affect the father and child relationship. All papers and records pertaining to the insemination, whether part of the permanent record of a court or of a file held by the supervising physician and surgeon or elsewhere, are subject to inspection only upon an order of the court for good cause shown."
Section 7613(b) has since been amended again. Effective January 1, 2012 (Cal. Const., art. IV, § 8, subd. (c)), section 7613(b) will provide: "The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in
2. Section 7613(b)
a. Steven S. v. Deborah D. (2005) 127 Cal.App.4th 319
In Steven S., the Court of Appeal determined that former section 7613(b), which provided that a semen donor is not the natural father, may apply even when the impregnated woman previously had a sexual relationship with the donor. In Steven S., the semen donor filed a petition to establish a parental relationship after the child was born. The trial court determined that the donor was the child's natural father, but the appellate court reversed, relying on former section 7613(b). The Court of Appeal observed that the trial court had "placed great reliance" on certain facts, including that the woman knew the identity of the donor, the parties previously engaged in sexual intercourse in an attempt to impregnate the woman after a prior impregnation failed, the woman acknowledged the donor as the father of the child, and she allowed him to "celebrate in the joy" of the child's birth. (Steven S., supra, 127 Cal.App.4th at p. 324.) The appellate court determined that "nothing" in former section 7613(b) "preclude[d] its application given these facts." (Steven S., at p. 325.)
The Court of Appeal further observed that although "[t]he Legislature has expressly declared that '[t]here is a compelling state interest in establishing paternity for all children' (§ 7570)," the Legislature has also established "[t]he public policy with regard to the rights of sperm donors." (Steven S., supra, 127 Cal.App.4th at p. 325.) Specifically, through former section 7613(b), the Legislature has afforded " 'to unmarried women a statutory right to bear children by artificial insemination (as well as a right of men to donate semen) without fear of a paternity claim . . . .' " (Steven S., at p. 325.) The appellate court explained that "[i]t is for the Legislature, not the courts, to choose
artificial insemination or in vitro fertilization of a woman other than the donor's wife is treated in law as if he were not the natural father of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child." (Stats. 2011, ch. 185, § 4, italics added.) between conflicting public policies. [Citation.]" (Id. at p. 326.) The Court of Appeal observed that former section 7613(b) did "not make an exception for known sperm donors" (Steven S., at p. 326), and reasoned that "[i]f the Legislature deemed it appropriate to exempt men who donate sperm through a licensed physician for use by their unmarried sexual partners, it would have done so" (id. at p. 327). The appellate court ultimately reversed the judgment of the trial court, which found the donor to be the natural father, and directed the trial court to enter judgment in favor of the woman.
b. K.M. v. E.G. (2005) 37 Cal.4th 130
A few months after the filing of Steven S., the California Supreme Court in K.M. addressed former section 7613(b) in the context of a lesbian couple. K.M. and E.G. started living together in 1994 and registered as domestic partners. (K.M., supra, 37 Cal.4th at p. 134.) In 1995, ova was withdrawn from K.M. for use in in vitro fertilization of E.G. (Id. at p. 136.) Twin children were born later that year. In 2001, the relationship between K.M. and E.G. ended, and E.G. and the twins moved to another state. (Ibid.)
The California Supreme Court concluded that former section 7613(b) did "not apply because K.M. supplied her ova to impregnate her lesbian partner in order to produce children who would be raised in their joint home." (K.M., supra, 37 Cal.4th at p. 138, italics added & fn. omitted.) Although K.M. and E.G. disputed whether K.M. "donated" the ova and disputed whether they previously agreed the child would be raised jointly or E.G. would be the sole parent, the California Supreme Court determined that it was "undisputed . . . that the couple lived together and that they both intended to bring the child into their joint home." (Id. at p. 139.) Thus, the case did "not present a 'true "egg donation" ' situation. [Citation.]" (Ibid.) The court reasoned that "K.M. did not intend to simply donate her ova to E.G., but rather provided her ova to her lesbian partner with whom she was living so that E.G. could give birth to a child that would be raised in their joint home." (Ibid.)
The California Supreme Court in K.M. further determined that, even assuming former section 7613(b) applies to women who donate ova, "the statute does not apply under the circumstances of the present case." (K.M., supra, 37 Cal.4th at p. 139.) After considering the predecessor statute to former section 7613, the legislative history of the predecessor statute, and the Model UPA, our Supreme Court stated the following: "It is clear . . . that California intended to expand the protection of the model act to include unmarried women so that unmarried women could avail themselves of artificial insemination. But there is nothing to indicate that California intended to expand the reach of this provision so far that it would apply if a man provided semen to be used to impregnate his unmarried partner in order to produce a child that would be raised in their joint home. It would be surprising, to say the least, to conclude that the Legislature intended such a result. The Colorado Supreme Court considered a related issue and reached a similar conclusion. [¶] In In Interest of R.C. (Colo. 1989) 775 P.2d 27, 29, the Colorado Supreme Court addressed a Colorado statute identical to section 7613(b), which applied to both married and unmarried women. At issue were the parental rights, if any, of a man who provided semen to a physician that was used to impregnate an unmarried friend of the man. The man claimed that the woman had promised that he would be treated as the child's father. The court recognized that the Model UPA addressed only the artificial insemination of a woman married to someone other than the semen donor, adding that the parental rights of a semen donor are 'least clearly understood when the semen donor is known and the recipient is unmarried.' (R.C., supra, 775 P.2d at pp. 31, 33-34.) The court concluded that the statute did not apply when a man donated semen to an unmarried woman with the understanding that he would be the father of the resulting child: '[W]e conclude that the General Assembly neither considered nor intended to affect the rights of known donors who gave their semen to unmarried women for use in artificial insemination with the agreement that the donor would be the father of any child so conceived. [The statute] simply does not apply in that circumstance.' (Id. at p. 35.)
The Colorado Supreme Court was thus faced with a situation in which a man provided semen, through a physician, to an unmarried 'friend' who allegedly had promised that the man would be the father of the resulting child. The court concluded that the Model UPA, and the Colorado statute based upon it, were not intended to apply to such circumstances. We are faced with an even more compelling situation, because K.M. and E.G. were more than 'friends' when K.M. provided her ova, through a physician, to be used to impregnate E.G.; they lived together and were registered domestic partners. Although the parties dispute whether both women were intended to be parents of the resulting child, it is undisputed that they intended that the resulting child would be raised in their joint home. Neither the Model UPA, nor section 7613(b) was intended to apply under such circumstances." (K.M., at pp. 141-142, italics added & fn. omitted.)
The majority in K.M. also addressed whether the " 'intent test' " developed in Johnson v. Calvert (1993) 5 Cal.4th 84 (Johnson) should be used to determine whether K.M. was a parent. (K.M., supra, 37 Cal.4th at p. 142.) "In Johnson, an embryo created using the sperm and egg of a married couple was implanted in a surrogate mother. It was undisputed that the husband was the father of the resulting child, but the wife and the surrogate both claimed to be the mother." (Ibid.) The California Supreme Court's decision in Johnson did not " 'preclude a child from having two parents both of whom are women . . . .' [Citation.]" (K.M., at p. 142.) However, the court did reject "the suggestion that, under the circumstances of that case, the child could have two mothers, leaving the child with three parents. [Citation.] In order to determine which woman was the child's sole mother under the UPA, [the California Supreme Court] looked to their respective intents: 'Because two women each have presented acceptable proof of maternity, we do not believe this case can be decided without enquiring into the parties' intentions . . . .' [Citation.]" (Ibid.)In K.M., the majority explained that "K.M. does not claim to be the twins' mother instead of E.G., but in addition to E.G., so we need not consider their intent in order to decide between them." (Id. at p. 143.) The majority in K.M. also believed that "[i]t would be unwise to expand application of the Johnson intent test . . . beyond the circumstances presented in Johnson. Usually, whether there is evidence of a parent and child relationship under the UPA does not depend upon the intent of the parent." (Ibid.)
c. Our Case
Turning to the case before us, under the reasoning of Steven S., section 7613(b) may preclude a finding that E.M. is the natural father of M.H.'s child, even though E.M. and M.H. apparently had a relationship together before the child was conceived. (Steven S., supra, 127 Cal.App.4th at pp. 324-327.) However, based on the reasoning of K.M., section 7613(b) would not apply if E.M. "provided semen to be used to impregnate his unmarried partner in order to produce a child that would be raised in their joint home." (K.M., supra, 37 Cal.4th at p. 141; see also id. at pp. 141-142 [although the parties disputed "whether both women were intended to be parents of the resulting child," it was "undisputed that they intended that the resulting child would be raised in their joint home"].)
E.M. broadly asserts that the trial court should have considered his "intent to be a parent," citing Johnson, supra, 5 Cal.4th 84, among other authorities. The majority in K.M., however, declined to apply "the Johnson intent test as suggested . . . beyond the circumstance presented in Johnson," which involved a surrogacy agreement and the determination of which of two women was the child's sole mother. (K.M., supra, 37 Cal.4th at p. 143.) The K.M. majority observed that "[u]sually, whether there is evidence of a parent and child relationship under the UPA does not depend upon the intent of the parent." (Ibid.)
E.M. also broadly argues that the trial court erroneously "ignored" the "best interest" of the child, and that it is in the child's best interest to have two parents. It is not necessarily proper to decide parentage in every case based on the best interests of the child. (Compare Johnson, supra, 5 Cal.4th at p. 93, fn. 10 [an approach deciding parentage based on the best interests of the child "raises the repugnant specter of governmental interference in matters implicating our most fundamental notions of privacy, and confuses concepts of parentage and custody"], with In re Jesusa V. (2004) 32 Cal.4th 588, 618-619 [section 7612 requires conflicting presumptions to be resolved by weighing considerations of policy and logic].) E.M. does not provide authority supporting the proposition that the child's best interest is an independent basis upon which his status as a parent may be decided in this case. Moreover, as we explained above, although "[t]he Legislature has expressly declared that '[t]here is a compelling state interest in establishing paternity for all children' (§ 7570)," the Legislature has also afforded unmarried women through section 7613(b) the " 'statutory right to bear children by artificial insemination . . . without fear of a paternity claim . . . .' " (Steven S., supra, 127 Cal.App.4th at p. 325.)
In sum, based on the reasoning of Steven S., section 7613(b) may preclude a finding that E.M. is the natural father of M.H.'s child, even though E.M. and M.H. apparently had a relationship together before the child was conceived. (Steven S., supra, 127 Cal.App.4th at pp. 324-327.) However, based on the reasoning of K.M., section 7613(b) would not apply if E.M. "provided semen to be used to impregnate his unmarried partner in order to produce a child that would be raised in their joint home." (K.M., supra, 37 Cal.4th at p. 141; see also id. at pp. 141-142 [although the parties disputed "whether both women were intended to be parents of the resulting child," it was "undisputed that they intended that the resulting child would be raised in their joint home"].)
3. Section 7611(d)
In the trial court and in this court, E.M. also raises the issue of whether a semen donor who "is treated in law as if he were not the natural father of a child thereby conceived" (§ 7613(b)), may be presumed to be the natural father of the child if he "receives the child into his home and openly holds out the child as his natural child" (§ 7611(d)). The parties have not cited any cases directly addressing this issue, although M.H. does cite authority for the general propositions that a special statute controls over a general statute, and a more specific presumption controls over a more general one.
For the following reasons, we determine that a man who is not the natural father of a child pursuant to section 7613(b) is not precluded from attempting to establish that he is a presumed father pursuant to section 7611(d).
First, the California Supreme Court has stated that " 'natural' as used in the UPA does not always mean 'biological.' " (Elisa B., supra, 37 Cal.4th at p. 125.) "[A] person with no biological relationship [to the child] could be a presumed parent under section 7611, subdivision (d)." (Ibid.).Thus, in the context of a semen donor, although his biological connection to the child is insufficient to establish his status as the child's natural father pursuant to section 7613(b), this would not necessarily preclude him from establishing his status as a presumed parent under section 7611(d).
Second, " '[t]he statutory purpose [of section 7611] is to distinguish between those fathers who have entered into some familial relationship with the mother and child and those who have not.' [Citation.]" (In re T.R. (2005) 132 Cal.App.4th 1202, 1209; see also id. at pp. 1211-1212 ["the premise behind the category of presumed father is that an individual who has demonstrated a commitment to the child and the child's welfare— regardless of whether he is biologically the father—is entitled to the elevated status of presumed fatherhood"].) Further, "[t]here are no time limits or standing requirements for challenging, or asserting, a section 7611, subdivision (d) presumption. 'Any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under subdivision (d) . . . of Section 7611.' (§ 7630, subd. (b).)" (Kevin Q. v. Lauren W. (2009) 174 Cal.App.4th 1557, 1571.) In the context of a semen donor, although the donor's act of providing semen to a licensed physician would, under section 7613(b), preclude him from being treated in law as if he was the natural father, this does not necessarily foreclose the possibility that subsequent acts or circumstances might appropriately give rise to a presumption under section 7611(d) that the man is the natural father of the child. (But see In re Cody B. (2007) 153 Cal.App.4th 1004, 1009-1013 [holding that a woman whose parental rights over her biological son were terminated in a former dependency action, but who continued to live with the child and hold him out to be her biological son, may not subsequently be designated the child's presumed mother under section 7611(d)].)
In determining that a semen donor may seek presumed father status under section 7611(d), we emphasize that subject to certain exceptions, "a presumption under Section 7611 is a rebuttable presumption affecting the burden of proof and may be rebutted in an appropriate action only by clear and convincing evidence." (§ 7612, subd. (a), italics added.) In other words, the trial court, in an appropriate case, may conclude that a man who otherwise meets the requirements of section 7611(d) is not the child's natural father.
4. Whether an Error in Law Occurred on the Initial Trial in This Case
Returning to the issue of whether an error in law occurred that would warrant a new trial, the trial court here indicated at the hearing on E.M.'s new trial motion that it believed application of section 7613(b) was a "done deal" at the time of the initial trial, but upon further reflection and review of K.M. in particular, it believed additional consideration and further testimony was needed as to certain matters. These comments indicate that at the initial trial, the trial court made an error of law and misapplied the law when it determined that E.M. was not the natural father of the child based solely on section 7613(b) and Steven S., without further consideration of whether E.M. might nevertheless be considered the father if he "provided semen to be used to impregnate his unmarried partner in order to produce a child that would be raised in their joint home." (K.M., supra, 37 Cal.4th at p. 141; see also id. at pp. 141-142 [although the parties disputed "whether both women were intended to be parents of the resulting child," it was "undisputed that they intended that the resulting child would be raised in their joint home"].) It also appears that the trial court may have failed to consider whether E.M. might be a presumed father under section 7611(d). As we have explained, a man may seek presumed father status under section 7611(d), even if he is not the natural father pursuant to 7613(b) by virtue of his semen donation. Because it appears that "the manner in which [the trial court] arrived at its decision [that E.M. did not have a parental relationship with the child] was an error of law," "[t]he trial court could grant the motion for a new trial to correct that error." (Sole Energy Co., supra, 128 Cal.App.4th at p. 197; see also Barr, supra, 50 Cal.App.2d at p. 43.)
M.H. argues that, even if the trial court considered the legal standards as set forth in K.M., or in section 7611(d), there was insufficient evidence presented at the initial trial to establish that E.M. was the father. We are not able to conclude that the outcome of the initial trial would have been the same had the trial court considered and applied the correct legal standards to the issue of whether E.M. is the child's father.
At the hearing on the new trial motion, the trial court indicated after reviewing various cases, including K.M., that the court did not give "enough consideration" as to the intent of the parties and the parties' credibility as to intent. With the correct legal standard in mind, the court indicated that it would have "insisted that the individual parties testify under oath" so that the court could evaluate their credibility. These comments reflect the court's belief that it should have given further consideration at the initial trial to various pieces of evidence and that it needed further evidence, by way of testimony under oath by the parties, to reach a proper determination. Given that the trial court indicated it did not have all the applicable legal principles in mind in determining whether E.M. is the child's father and that, if it had, it would have sought additional testimony from the parties, and given that, as the trial court recognized, this case involves "such an important issue" as to whether E.M. has a parental relationship with the child, we conclude that the trial court properly granted the motion for a new trial.
We have determined that an error in law occurred at the initial trial. Therefore, we must affirm the trial court's order granting a new trial motion "upon finding one ground in support thereof." (Maher v. Saad (2000) 82 Cal.App.4th 1317, 1327 (Maher); see also Code Civ. Proc., § 657; Sanchez-Corea, supra, 38 Cal.3d at pp. 899, 905.) Consequently, we need not and do not address the other grounds asserted by E.M. in support of his new trial motion. (Maher, supra, 82 Cal.App.4th at p. 1327.) We express no opinion as to the merits of E.M.'s petition to establish a parental relationship, or as to the outcome of any future trial.
IV. DISPOSITION
The order granting E.M.'s motion for a new trial is affirmed. The parties are to bear their own costs on appeal.
BAMATTRE-MANOUKIAN, ACTING P. J.
WE CONCUR:
Retired Associate Justice of the Court of Appeal, Sixth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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