Published in In Chancery (Contra Costa County Family Law Section Newsletter)
By David M. Lederman, Esq.
"The Rules of Civil Procedure Do Apply in Family Law" - Marriage of Boblitt, (Super. Ct. No. 04FL00159) C072685, filed 2/7/14 (certified for partial publication):
The following exchange between counsel and a court occurred before Judge Roman in Sacramento:
"Adverting to the deposition of husband, the court asked wife's counsel if she got "an order allowing [her] to take that second deposition as required by the Code of Civil Procedure." She replied, "I don't know that that's required because this is post judgment. It's a separate case." ... As the discussion continued, the court asked if they could "all agree, you can't just send a second deposition notice just because you want to, right?" Wife's attorney replied, "I think in family law, not in civil law, but in family law there is a recognition that post-judgment motions act as a separate and individual case when it's post judgment . . . ."
The 3rd DCA in Sacramento disagreed. According to Justice Robie: " The Rules of Civil Procedure Do Apply in Family Law." Justice Robie observed "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, 1354 ["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., § 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. (b))..."
There is no family law exception to the CCP, at least not today. Justice Robie stated that "Wife does not point to, nor are we otherwise aware of, any provision that reopens discovery in a marital dissolution proceeding just because one of the parties has filed a postjudgment motion. The assertion of her attorney that "post-judgment motions act as a separate and individual case" for purposes of discovery finds no support in the law."
"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," 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 neede d." [emphasis added]
Lesson: For now, file your request to reopen discovery with your post judgment Request for Orders. From the FLEXCOM meeting Paul Bonner and I attended over the weekend, I understand that there are a couple of special interest groups that are working on "anti-Boblitt" legislation. As we learn more of these efforts, we will keep you posted.