Marriage of BennerAnnotate this Case
At the direction of the trial court, respondent Rebecca Tam filed a petition seeking to join appellant Dr. John Kachorek as a party to the marital dissolution proceeding between her and her former husband, Paul Benner. In her petition, Rebecca outlined the unusual procedural history of this case that led to her filing the petition for joinder. The trial court dissolved Rebecca and Paul's marriage in June 2010. In May 2011, Paul filed a postjudgment motion seeking modification of child custody. In June 2013, the trial court appointed Dr. Kachorek, pursuant to Evidence Code section 730, to conduct a child custody evaluation. Dr. Kachorek issued a child custody evaluation report in 2014. In 2016, the trial court determined that Dr. Kachorek's report was deficient in a number of respects and that the report was thus of no value in assisting the court in determining what would be the appropriate child custody arrangement. The court ordered Dr. Kachorek to repay Rebecca and Paul all of the expert fees that they had paid him pursuant to his appointment. In March 2017, the trial court set aside the repayment order and joined Dr. Kachorek, sua sponte, as a party to the action for the purpose of determining whether to order him to repay the fees. The trial court subsequently granted Dr. Kachorek's motion to quash the sua sponte joinder order and ordered Rebecca to file a formal petition to join Dr. Kachorek in the action. When she did, Dr. Kachorek filed a special motion to strike the petition pursuant to the anti-SLAPP statute, arguing "the claims asserted in the petition arise from protected activity" under the statute. Rebecca opposed the motion, in which she argued that her petition "does not even contain a cause of action," and that she sought merely to provide Dr. Kachorek with notice of a hearing regarding his fees under Evidence Code section 730, as directed by the trial court. The trial court denied Dr. Kachorek's anti- SLAPP motion, concluding that the petition did not state a cause of action arising from protected activity, but rather, merely joined Dr. Kachorek to the action for the purpose of "establishing the reasonableness of his fees." The Court of Appeal concluded the trial court properly denied Dr. Kachorek's motion, though it found Dr. Kachorek did not have to be joined as a party to the dissolution action in order for the court to determine the reasonableness of his expert fees—including whether to order him to repay fees already received—and it was error for the court to require that he be joined in the action. The matter was remanded with instruction on the proper procedural manner by which the trial court could determine this issue on remand.