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Am I Entitled To Obtain Discovery In a Post-Judgment Application In a Dissolution?

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


Ryan -

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).

The 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, 3662, and 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


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