Summer 2015, Issue 3

Family Law: Discovered AB 2586 was born, supported by other groups, and signed into law less than six months later.

As part of my law school experience, I externed downtown in the Central District U.S Attorney’s office. I remember Judge Tomson Ong (then a U.S. Attorney), while teaching our small group of law students, holding up the softbound Federal Rules of Civil Procedure and announcing, “You will win by knowing the rules.” I loved it. Game on. From law school, I headed to family law practice. It was that litigation chess game, coupled with close access to clients and courtroom, that drew me in. I learned the procedural rules, but sometimes they didn’t stick. Was family law true litigation? Or were we simply a “court of equity,” viewed as a somewhat distant cousin or stepchild to general civil law—the Cinderella, if you will. With our small, packed courtrooms, the Judicial Council form pleadings, Petitioner, Respondent, and the Family Code, we had our peculiarities, but we followed the rules. Discovery was no exception. There were special carve-outs, however: self-executing discovery, fiduciary duties, mandatory disclosures, far-reaching sanctions, and unique post-judgment opportunities—but all tethered to the Code of Civil Procedure (CCP). Or, so we thought. And then came the Boblitt case.

After a two-day trial and subsequent dueling Statements of Decisions, Steve and Linda Boblitt obtained their final judgment in April 2008. In re Marriage of Boblitt, 223 Cal. App. 4th 1004, 1029 (2014). That judgment, however, did not completely resolve all issues, as there were two remaining real properties: Hedge Avenue and Ranchita Way. Id. at 1009. Hedge Avenue was a commercial building, ordered to be sold and proceeds equally divided, offset by any reimbursements. Ranchita Way was the family home awarded to Linda, but ordered to be refinanced. Four years post-judgment, Ranchita Way had been lost to foreclosure, but Hedge Avenue finally had a potential buyer. What followed were motions to compel the sale, ex parte applications, right of first refusal assertions, damages, offsets, discovery served, a deposition taken––all surrounded by argument and controversy.

Eventually, Steve’s motion to sell Hedge Avenue was set for hearing, with full briefing on financial claims against the sale proceeds. The pivotal dispute came when Steve sought reimbursements for payments he had made on the Ranchita house. Linda argued they were only dealing with Hedge Avenue––that including these new claims came as a surprise and would be unfair. Steve filed a motion to have all reimbursement issues heard together, including his Ranchita claims. Linda responded that because trial was just three weeks away, her discovery rights would be cut off on those issues, essentially eviscerating her due process rights. Steve, however, argued that Linda had known all along of his reimbursement claims because he had provided a full accounting back in March 2011. Id. at 1016. The court thought Linda’s better remedy would be to request a continuance. Steve’s request was granted and then, it appears, Linda made an ex parte application for continuance based on her supposed surprise learning of Steve’s Ranchita reimbursement claims. But, with a new judge on the matter, Linda’s application was denied, along with a subsequent motion in limine. At the evidentiary hearing, Linda continued her complaint that the Ranchita reimbursements could not be at issue. The third judicial officer, Judge Roman, was unmoved by Linda’s tall tale of surprise––information that, come to find out, she had access to for more than two years––and awarded Steve credit for his Ranchita payments. Linda appealed, and the decision was affirmed. Id. at 1031.

The Boblitt panel quipped that Linda’s claim to discovery was not based in any law. They wrote:

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 post-judgment motion [on the reimbursement claims]. 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.

Id. at 1022. Highlighting Family Code section 210 as the vehicle to tie family law with general civil law, the court concluded that “[no] statute or rule of court exempts a marital dissolution proceeding from the applications of the Civil Discovery Act.” Id. And, this includes the thirty-day-before-trial discovery cut-off. See Cal. Civ. Proc. Code § 2024.010 et seq. In their determined view, there is no automatic post-judgment right to discovery:

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 post-judgment 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.

Id. at 1023. But did they get it right? Some family law lawyers disagree.

The self-proclaimed hard-core litigators––those stemming from the civil courts––maintain that the thirty-day cut-off applies to family law and always has. If you file a post-judgment motion of any sort, you’d better have some semblance of evidence to support your request before discovery can be reopened. No “I think,” “I feel,” or “based on information or belief” without a proper foundation. Otherwise, that common fishing expedition metaphor will dive into someone’s private, post-judgment life.

Others subscribe to the distinguishing view that Boblitt spoke only to property issues; that post-judgment motions to modify or terminate support are exempt from the holding. This leads to Family Code section 3660 et seq.: freely allowing basic discovery every twelve months and then routine requests once your motion is pending. About Family Code section 3662, the Boblitt court wrote:

We do not understand the foregoing provision to imply that once a post-judgment motion for modification or termination of support order is pending, discovery in the action automatically reopens and all of the other methods of discovery . . . are available . . . without agreement or court order.

Id. at 1024. So, serving your support modification request for order coupled with a stipulation to reopen discovery would eliminate any Boblitt dilemma.

And then, there is the question on how the Boblitt panel inexplicably never mentioned Hixson, a post-judgment dispute over an omitted asset––the “Amgen” case. See In re Marriage of Hixson, 111 Cal. App. 4th 1116 (2003). After a thirty-two year marriage, Georgiana and Harry separated in 1995. Id. at 1119. During their marriage, Harry was president and CEO of Amgen and most of the parties’ marital assets consisted of that stock and partnerships. Following the start of dissolution proceedings, Harry provided Georgiana an extensive declaration setting out trust assets, sat for two days of deposition, and provided all requested financial records. In 1997, by a series of stipulated judgments, all trust assets were distributed as separate property or otherwise remained in trust pending release. In 2001, Georgiana filed a probate petition alleging $34 million of unaccounted for stock and sundry other breach claims. Id. at 1120. By Harry’s motion, the case was transferred to family court. Prior to hearing, Georgiana propounded discovery and Harry immediately moved to quash. The trial court stayed discovery until a hearing to determine if it would be allowed. In the end, the trial court did not find sufficient evidence to aptly show any unadjudicated community asset, where discovery would then be necessary, and with that, denied Georgiana’s order to show cause request. Linking this to Boblitt, Georgiana, after filing her Family Code section 2556 motion, did not have to also make a request to reopen discovery. Rather, she simply served it. And, it was then incumbent on Harry to restrict her queries.

Another missed opportunity for the Boblitt panel came from the Code of Civil Procedure itself; section 2017.010 reads:

Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Emphasis added.)

Are post-judgment motions “any motion made in that action?” Or, do “actions” stop at judgment?

And, finally, other family law attorneys observed that footnote 10 was dictum—not controlling. But never mind. Truly it does not matter now. Legislative movement was ignited by Boblitt footnote 10:

It might behoove the Legislature, or the Judicial Council, to specifically address the application of the Civil Discovery Act to post-judgment family law proceedings . . . . In the absence of specific guidance, however, we are left to construe what law there is, and we construe the existing law to require a motion to reopen discovery in a marital dissolution proceeding when discovery is desired regarding a matter raised by a post-judgment motion.

Within just weeks, the ACFLS approached prior family law attorney Assemblyman Richard Bloom to sponsor “anti-Boblitt” legislation. AB 2586 was born, supported by other groups, and signed into law less than six months later. Effective January 2015, California’s new Family Code Section 218 reads:

With respect to the ability to conduct formal discovery in family law proceedings when a request for order or other motion is filed and served after entry of judgment, discovery shall automatically reopen as to the issues raised in the post-judgment pleadings currently before the court. The date initially set for trial of the action specified in subdivision (a) of Section 2024.020 of the Code of Civil Procedure shall mean the date the post-judgment proceeding is set for hearing on the motion or any continuance thereof, or evidentiary trial, whichever is later.

But this fresh statute doesn’t come without its own set of problems. Simply looking to the calendaring logistics, some believe most hearings would be set long before any discovery responses would be due. So, either the discovery is rendered useless or the hearing is continued—possibly at great expense and Family Code section 271 accusations. And, others see Family Code section 218 as helpful, but not complete or clear on its face, and feel that an independent Family Law Discovery Act should be created. One small group is now on that mission.

Believing the Boblitt finding was specifically made to push this issue, Sonoma County’s Commissioner Bayles-Fightmaster has taken charge. Coming full circle on the federal rules in my opinion, this commissioner looks to Federal Rule of Civil Procedure 26 for the discovery ideal: without being asked, provide everything out the chute and as it becomes known, or be sanctioned. She formed a committee of local family law attorneys who have a new Family Code chapter in draft, and are hopeful a bill can be introduced no later than 2016. Starting with revised fiduciary duties and disclosures, the chapter moves to formal discovery, and ends with sanctions. It not only provides a roadmap for family law discovery, but also addresses evidentiary hearings and post-judgment discovery.

However, this Family Code Discovery Act idea does not come without some opposition. Other judicial officers and practitioners still hold that, while family law is no doubt unique, reveling in the distinctions might do more harm than good––that its similarities and dependence on the other judicial disciplines far outweigh any differences. And, from purely a procedural view, family law has myriad tools already available that make an independent Family Law Discovery Act redundant: stipulations for post-judgment discovery, court orders and Family Code section 271 if the other side won’t agree, fee requests for unjustified denials of legitimate discovery, and protective orders when the quest becomes abusive.

The saga of family law discovery continues. With our own Family Law Discovery Act, will we be more the scorned stepchild, or likened better to Cinderella—living happily ever after? ■

* This article first appeared in Orange County Lawyer, January 2015 (Vol. 57 No. 1), p. 42. The views expressed herein are those of the author. They do not necessarily represent the views of Orange County Lawyer magazine, the Orange County Bar Association, the Orange County Bar Association Charitable Fund, or their staffs, contributors, or advertisers. All legal and other issues must be independently researched.