Q. I am seeking to enforce a trial court judgment, by which my former wife
owed me Epstein reimbursements, as against some property that was divided
by the judge and awarded to her. I intend to file a Request for Orders
as my own attorney, and am wondering how I go about getting her deposition
and whether this is even possible?
Ryan, Santa Clara
I am grateful for this question, because I've been meaning to Blog
an appellate decision that came out in February, 2014 that answers your
question, but haven't had the time until now - I call it the case
of the battling Boblitts, because it is a tortuous decision to read and
involves a couple that bickered over their marital dissolution for almost
10 years following an initial separation in January, 2004!
Marriage of Boblitt (2/7/14) 223 Cal.App.4th 1004 - now, I wonder how much that cost them?
Anyway, this decision may not be news to most dedicated family law counsel
since the decision is now several months old, but it likely is news to
self-represented parties such as yourself and I have some suggestions
that might even be helpful for newer attorneys.
The decision itself contains almost 20 pages of preamble that sets forth
in painful detail which lawyer said what to a seemingly ever changing
series of family law bench officers, spanning a period from January, 2004
to a two-day trial in 2007 (that led to a reversal in favor of Wife, who
lost this second appeal) to an August 16, 2012 evidentiary hearing on
various post-judgment issues including set-offs in favor of each of the
parties and the ultimate disposition of a property the parties continued
to co-own post-judgment for a time. Because the appellate court's
published decision gives me a headache to read (but is a wonderful explication
of how some family law attorneys can fight over every point and
somehow never cooperate, and thus raise their client's fees to catastrophic levels), I will
spare you the facts, except for the essentials.
Basically, there was a trial in 2007. The Court issued a judgment. Dissatisfied
with the trial court's ruling on the issue of spousal support as a
part of her recovery for alleged domestic violence during the marriage,
Wife separately filed a civil complaint for tort damages for pain and
suffering against the Husband. That action was dismissed by the civil
judge, on the basis that it had already been litigated within the disso
action or was subject to an issue preclusion because the damages she sought
in the civil claim was or should have been raised therein. This is
Boblitt I (Boblitt v. Boblitt (2010) 190 Cal.App.4th 603).
Boblitt I held that Wife's civil action was not precluded by the outcome of
the family law case, and so reinstated her civil action. I am not sure
how that one turned out - i.e., whether it was settled, later dismissed,
or tried. Maybe this alleged history of domestic violence explains the
entrenched conflict this case reflects on one or both sides).
In the family law
Boblitt case that I here discuss,
Boblitt II, a post-judgment evidentiary hearing was set, as discussed above. Wife's
attorney claimed that she was entitled to undertake certain discovery
before that hearing took place, particularly so because post-judgment
hearings often have a very short timing fuse - they may be set anywhere
from 45 to 90 days after the post-judgment RFO is filed. She wanted a
deposition, and the production of documents, and also contended that the
Husband's attorney had expanded the issues from what the post-judgment
motion originally set them as, and that therefore she was being ambushed
and deprived of due process if she could not first fully exercise her
rights to discovery under the California Code of Civil Procedure. Apparently
Wife failed to properly request a continued hearing, and she did not file
a motion to reopen discovery pursuant to CCP section 2024.050(a). That
was her fatal mistake, and the lesson for you.
The appellate analysis begins by pointing out that
Family Code section 210 provides that "[e]xcept to the extent that any other statute or rules
adopted by the Judicial Council provide..., the rules of practice and
procedure applicable to civil actions generally ... apply to, and constitute
the rules of practice and procedure in, proceedings under [the Family
Law Act]." It noted that there are no statutes or rules that exempt
family law or marital dissolution proceedings from the rules set forth
in the Civil Discovery Act (CCP section 2016.010 et seq.). Per
CCP section 2024.020(a), discovery must generally be completed "on or before the 30th day
... before the date initially set for the trial of the
action." [Italics added]. Lawyers call this "the discovery cut off,"
and as an aside you should note that the discovery cut-off occurs at the
first date set for trial even if it is later continued (absent a stipulation
otherwise). CCP section 2024.020(b).
Boblitt court therefore reasoned that "the action" was the underlying
marital dissolution case, which had initially been set for trial on February
8, 2007, and that therefore the discovery cut-off date was in January,
2007 and discovery thereafter closed by operation of law. Hence, there
is no provision anywhere that treats a post-judgment application as a
separate action; instead, it is derivative of the action. One the discovery
cut-off has occurred, the only way around it is either by way of agreement
(stipulation) or a court order reopening it. Of course, there are often
reasons why both sides might want to agree to this, since the other side
may want to ask you a few questions before the hearing themselves.
Here is what I recommend you, or a party who might be opposing a post-judgment RFO, do:
- If you are moving party, include in your RFO declaration a request to reopen
discovery to allow specific and limited inquiries into those issues that
are relevant to your issues. Indeed, concurrent with filing the RFO send
a meet and confer letter to the opposing party or their attorney (or both,
assuming the other party still has an attorney of record in the case since
most attorneys file a Notice of Withdrawal at the conclusion of a divorce
case) asking that they agree to you undertaking limited discovery and
offering them the same opportunity - attach that as an exhibit to your
RFO. Offer to continue the hearing to such a time as will allow the completion
of discovery you need.
- If you are the opposing/resisting party, and need to conduct discovery
to have a fair hearing, immediately send a meet and confer letter asking
the moving party to stipulate to limited discovery and ask them to respond
within 5 days. If they ignore your entreaty or refuse it, file an ex parte
application to obtain an order shortening time on a motion to reopen discovery,
again carefully stating the reasons why you need it and your good faith
efforts to obtain that stipulation without the expense of waste of the
court's time in having to file for it. Ask that the hearing on your
motion to reopen be set for the same date as the initial hearing, if possible
- or, possibly include a request to continue the RFO hearing out to a
date when your motion to reopen can likewise be heard, and further ask
that the hearing of the other party's RFO be stayed until your request
can be adjudicated.
If you get served with discovery in a post-judgment action and want to
obstruct it, be sure to timely object to whatever form of request gets
served upon you, whether as
special interrogatories, a
production request, or a
deposition. That will place the burden of effort on the other party to file a motion
if they wish, although I'd argue you don't even need to respond given
Boblitt, it is the safer course and a judge might find a waiver on your part if
you do not.
By the way,
Boblitt notes that certain post-judgment discovery is expressly authorized by
the Family Code. I've written about these sections, including
Family Code sections 3660,
3664 - but those only involve issues relating to modification of child, spousal,
or family support and then - as one of my readers recently pointed out
to me - only to production of the FL-150 or tax returns, and not as to
the more useful forms like interrogatories, production requests, or depositions.
Civil Procedure Codes, it isn't realistic and there needs to be some
better form of limited post-judgment discovery, because really the illusion
is that there is a discrete and final "trial". We who are living
in the family law and divorce community know that is not true except when
two people can walk away together, with no further ties.
As always, try to have yourself a sane divorce out there!
By: Thurman W. Arnold, III, CFLS