County of Alameda v. Moore

In County of Alameda v. Moore (1995) 33 Cal.App.4th 1422, the disputed issues were separation, ability to pay, and receipt of public assistance. (33 Cal.App.4th at p. 1426.) All of the evidence the court heard on these issues came from the attorney's opening statement, although the parties were sworn and gave testimony on other matters. (Id. at p. 1425.) The appellate court held no evidence had been introduced to support the decision on disputed issues because the unsworn opening statements of counsel were not evidence. (Id. at p. 1426.) The court held the father did not waive any objections to the receipt of the evidence because the father could not have been expected to know that the trial court would consider the attorney's opening statements as evidence. (Ibid.) The court recognized that because of the number of cases on the family law calendar, every case could not receive a full evidentiary hearing. (33 Cal.App.4th at p. 1427.) The court specifically approved an informal process whereby the trial courts, "make decisions based upon moving and responding papers with supporting declarations executed under penalty of perjury, supplemented as necessary by offers of proof, and only occasionally by oral testimony." (Ibid.)