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Am I Entitled to Obtain DISCOVERY If I File a SET ASIDE MOTION Before the Matter is Decided?

Q. Hello Mr. Arnold,

I appreciate your website, it is very useful. I really hope you can let me know if I am allowed to serve Form Interrogatories on my ex after I file a FL-360 Application to set aside support order under family law section 3691. Is discovery in this manner permitted before the hearing? If so, how long do I have to wait after filing FL-360 before I serve him with Form Interrogatories? Any help is GREATLY appreciated!

Wendy


A. Hi Wendy -

Discovery is permitted by the CCP so long as the underlying "action" (i.e., the case in chief) has not gone to Judgment - I would serve the form interrogatories along with your application together, and personally and not by mail. If a support order was issued, as in a temporary support order, but the overall case has not been resolved, you are free to conduct discovery. The proper analysis is that each post-order modification or set aside motion is a discrete proceeding with discovery rights and obligations, assuming you've not had a trial on the merits of the entire case. If your matter is "post-judgment," please consider CCP section 2024.020 which might apply - we don't know, because there is no appellate decision on post-dissolution discovery to date.

I'm not sure that all judges see it that way though but I believe it is an accurate statement of the law.

One problem is timing - if you file an OSC then the clerk sets the hearing date, which in most jurisdictions will be about the same time as your form interrogatory answers are due - and you can expect your ex to toy with you and so you may not get useful answers within the 30 days after you propound them. When interrogatories are served by mail, they are due 35 days after mailed, plus the responding party can mail the responses and so this adds another 5 days.

His answers may come in after the time your Reply to any Responsive Declaration must be filed and served, so you can't bring the quality (or lack thereof) or information contained in the responses to the judge's attention in a procedurally correct fashion. I usually go with a Notice of Motion format where I want some discovery completed before the hearing - and set the date 60 to 75 days out to give time for the other side to have a reasonable opportunity to have gotten it done and to appear unreasonable or obstructionist if they have not.

It never hurts to send out a set of form interrogatories because at least you can complain about the other party's failure/refusal to comply with their discovery obligations, which may win you a continuance or some bias against the ex.

However, form interrogatories are extremely limited in their usefulness except when seeking general information in the course of a dissolution or legal separation action. A better or additional practice would be to use a demand for production instead of or in addition to form rogs, or possibly special interrogatories if you can draft them properly. You can use a Notice to Appear and Produce Documents at the hearing, assuming you are looking for specific records. I don't have that form up on my website and I'm not sure if there is a Judicial Council form for it. Subpoenas to third parties can be useful in small jurisdictions particularly when those records won't be lost by the clerk's office, but third parties often ignore them and judges usually don't grant continuances based upon the lack of a response (for subpoeanas, always demand that the custodian of records actually appear on the date and at the time specified rather than giving them the option of not appearing).

If you had a lawyer and if a lot of money was involved, you might consider a deposition. They require only 10 day's personal service when the Notice is served personally, unless they include a document production request. C.C.P. § 2025.270.

Finally, you might hit the "Other" box on the FL-300 and FL-310 application forms and specifically ask the Court to allow you to complete specific discovery before your application is heard on its merits, as in "I request an order permitting me to complete the following discovery (state it, but make the discovery as short and pin-pointed as you can) before this application is decided by the Court."

How this goes for you depends a lot on the personality of the judge and their custom and practices in managing their calendar. If you have a reasonable and narrow discovery request, no good judge will preclude you from exercising these rights.

Finally, be careful not to draft your application as a sort of disguised motion for reconsideration. If the Court feels you are just trying to take another bite of the apple from a recent hearing, unless you have material new evidence that wasn't disclosed by the other party you may not get much traction.

One more thing - I am assuming this set aside is not a post-judgment application. If you are in the middle of a dissolution, legal separation, or paternity action and no final judgment has been entered then you are free to do discovery and then file the motion afterwards or do both concurrently. On the other hand, if there has already been a judgment and the set aside deals with an order that came as a result of a post-judgment motion either of you filed, then one route is follow my recommendations above.

T.W. Arnold, III, CLFS

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