As a discovery referee in family law matters, I often come upon issues where opposing counsel does not think the Discovery Act applies to their proceeding. They argue that it is not necessary to make a diligent search and a reasonable inquiry when producing documents because everything is informally provided or that they don’t need to respond to the interrogatories because opposing counsel has all the information he needs because they talked about it on the phone three weeks ago. My favorite argument was that the rules of evidence do not apply to family law. These misconceptions are due to the fact that there is a lot of informality in family law between the parties and between the parties and the court.
The Third District Court of Appeal case In re Marriage of Boblitt is getting a lot of discussion in the family law arena as it boldly states that “Rules of Civil Procedure Do apply in Family Law.” Though the decision involves discovery for a postjudgment motion, it stresses that the law is clear that family law matters are not exempt from the rules other civil litigants are obliged to follow. Below are relevant portions of the case:
On appeal, wife first contends the trial court (Judge Culhane) deprived her of due process when the court “grant[ed husband’s] motion to add Ranchita Way reimbursements as an issue just three (3) weeks and (2) days before trial.” According to wife, by doing this the court “terminated her discovery rights before they ever began, as discovery cut-off is 30 days before trial by statute.” Without the right to conduct discovery and without “any factual pleading in support of [husband’s] Ranchita Way reimbursement claims,” wife contends she was “obliged to defend against [his] claims based on whatever occurred at trial.” She concludes, the “[f]undamental requirement of due process is [the] opportunity to be heard and the opportunity must be granted at a meaningful time and in a meaningful manner. [Citations.] A meaningful time for notice would include an opportunity to obtain evidence under the discovery statutes, an opportunity [wife was] denied.”
Wife’s due process argument is based on the assumption that she had the “right” to conduct discovery prior to the evidentiary hearing on husband’s postjudgment motion to divide the proceeds from sale of the Hedge Avenue property. That assumption, in turn, appears to be based on the belief of wife’s attorney that “in family law, [but] not in civil law, . . . post-judgment motions act as a separate and individual case” for purposes of discovery. That belief is incorrect.
Section 210 of the Family Code provides that “[e]xcept to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally . . . apply to, and constitute the rules of practice and procedure in, proceedings under this code.” (See also Cal. Rules of Court, rule 5.2(d); Elkins v. Superior Court (2007) 41 Cal.4th 1337, 2354 [“Although some informality and flexibility have been accepted in marital dissolution proceedings, such proceedings are [generally] governed by the same statutory rules of evidence and procedure that apply in other civil actions”].)
No statute or rule of court exempts a marital dissolution proceeding from the application of the Civil Discovery Act (Code Civ. Proc., § 2016.010 et seq).
Accordingly, the provisions of the Civil Discovery Act — including those provisions that govern the time for completion of discovery (Code Civ. Proc., § Code Civ. Proc., § 2024.010 et seq. ) — apply to such proceedings. Under those provisions, discovery generally must be completed “on or before the 30th day . . . before the date initially set for the trial of the action” (id., §2024.020, subd. (a), italics added) and, absent court order (or an agreement of the parties), “continuance or postponement of the trial date does not operate to reopen discovery proceedings” (id., §2024.020, subd, subd. (b)).
…Once the discovery cut-off date has run and discovery has closed, the only means provided in the Civil Discovery Act for reopening discovery is a motion for leave of court. (Code Civ. Proc., §2024.050, subd. (a).) It is true that the statute specifically speaks only of the court granting “leave . . . to reopen discovery after a new trial date has been set” (italics added), and that is not exactly the situation in a marital dissolution case where a postjudgment motion has been filed. Nevertheless, we construe the statute as allowing a motion to reopen discovery after judgment in a marital dissolution proceeding because otherwise, in light of the fact that there is no basis for concluding that discovery automatically reopens for each and every postjudgment motion, not construing the statute in this manner would leave the parties without any access to discovery on postjudgment matters where it may be needed.
Thus, we conclude there is no automatic right to conduct discovery under the Civil Discovery Act in connection with a postjudgment motion in a marital dissolution proceeding. To secure the right to conduct such discovery, a party must secure the agreement of the other party or must obtain a court order for leave to conduct discovery. [emphasis added]