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Attorney Fees in California Discovery Motions in Divorce and Family Law Cases - Ensuring an Even Playing Field

Attorney's Fees and Sanctions In Discovery Motions in

California Family Law Proceedings

There is a common misconception by some family law attorneys, and bench officers, that equitable family law considerations of need and ability to pay are determinative to discovery motions made under the California Civil Discovery Act in terms of a court awarding, refusing to award, or reducing an award, for attorney fees and costs incurred in the course of motions to compel answers to discovery or further answers - such awards are in the nature of a "sanction." This is unfortunate because it allows a litigant or attorney carte blanche to be obstructionist or uncooperative by refusing to provide discovery responses, which is turn hobbles the requesting party.

Under the Code of Civil Procedure (CCP), attorneys fees as sanctions may be awarded for abuses of the discovery process. CCP section 2023.030 states "(a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." [Italics added]. Hence, under section 2023.030 the court may order sanctions for general discovery misconduct, but under the various sections dealing with production requests, interrogatories, and requests for admission the court "shall" issue such sanctions, unless the party against whom sanctions are requested acted with substantial justification or other circumstances would make sanctions unjust.

There is no provision for basing such a sanctions award on the parties' relative financial circumstances in the CCP. There is no requirement for submitting income or net worth statements, before determining what sanctions are "reasonable."

In family law proceedings imposing such a requirement can result in a party who is forced to file such motions to absorb some or all of the legal costs of obtaining from the other side what they were entitled to, when if they prevail on the motion to compel they've demonstrated they should not have been forced to go through the hassle and expense of filing a motion in the first place. Applying a needs' based analysis can end up encouraging discovery wars if the financial consequences incurred by the prevailing party are not fairly imposed on the resisting party. Yet this reality is often overlooked. The fact is that under the CCP, relative financial circumstances are generally irrelevant. Nothing in the Family Code or in the family law rules of court state that the CCP is to be applied any differently in family court matters.

Dividing marital property and setting support awards in California family law proceedings is a daunting task for the practitioner seeking to obtain the critical evidence to prove or defend against a claim, particularly because of the discovery gamesmanship that family law attorneys and litigants engage in, when attempting to hide the ball and so provide incomplete (or no) information that makes the orderly processing of these types of cases nigh possible.

Some family court judges unwittingly abet these abusers, by failing to consider what amount of effort is required to obtain discovery from recalcitrant litigants and to provide adequate compensation to the attorneys, and their clients, that are forced to file motions to compel under Discovery Act. If one cannot recover the costs of forcing the other side to be transparent and produce evidence before trial (or RFO hearing) that the requesting parties needs, then many family law litigants who cannot afford the costs of litigation will be forced into a trial or other adversarial hearing with inadequate preparation and backup, which will make it far more likely that they receive an unjust result. Unfortunately, many family court judges fail to award discovery sanctions in an amount that covers the cost of filing them, or in an amount that would deter further misconduct.

I want to be clear that discovery gamesmanship almost always favors the more economically powerful spouse. In opposite-sex cases, this will – more often than not – disadvantage the woman. In same-sex cases, it will be the lower earner who suffers, unless he or she has access to funds. Either way, and whatever the permutation, it leads to unjust results. California family law statutes (including Family Code sections 721, 1100 et seq., and 2100 et seq.) demand transparency. Spouses are fiduciaries, each to the other, just like business partners. This includes whatever happens until the community property assets are determined by the court, and divided. Obtaining discovery is critical to the spouse who needs it, but if they cannot afford to force the issue - and particularly if the other side knows they will face no financial consequences for stonewalling, the system begins to break down.

Family Code sections 2030, 2031, and 2032 govern need-base attorney fee awards in family law cases. Unlike the CCP, these are not in the nature of "sanctions." These statutes require the court to look at the relative financial circumstances of the parties before ordering fees. They make no reference to fees as sanctions. The Family Code section that authorizes courts to award "sanctions" is section 271.

Motions to compel, whether in the famlaw or civil context, are outrageously expensive for the litigants and require a huge wind-up expense even before they may be filed. Civil Rule of Court 3.1345 mandates that:

"Format of discovery motions

(a) Separate statement required

Any motion involving the content of a discovery request or the responses to such a request must be accompanied by a separate statement. The motions that require a separate statement include a motion:

(1) To compel further responses to requests for admission;

(2) To compel further responses to interrogatories;

(3) To compel further responses to a demand for inspection of documents or tangible things;

(4) To compel answers at a deposition;

(5) To compel or to quash the production of documents or tangible things at a deposition;

(6) For medical examination over objection; and

(7) For issue or evidentiary sanctions.

(Subd (a) amended effective January 1, 2007; previously amended effective July 1, 1987, January 1, 1992, January 1, 1997, and July 1, 2001.)

(b) Separate statement not required

A separate statement is not required when no response has been provided to the request for discovery.

(Subd (b) adopted effective July 1, 2001.)

(c) Contents of separate statement

A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response. Material must not be incorporated into the separate statement by reference. The separate statement must include-for each discovery request (e.g., each interrogatory, request for admission, deposition question, or inspection demand) to which a further response, answer, or production is requested-the following:

(1) The text of the request, interrogatory, question, or inspection demand;

(2) The text of each response, answer, or objection, and any further responses or answers;

(3) A statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute;

(4) If necessary, the text of all definitions, instructions, and other matters required to understand each discovery request and the responses to it;

(5) If the response to a particular discovery request is dependent on the response given to another discovery request, or if the reasons a further response to a particular discovery request is deemed necessary are based on the response to some other discovery request, the other request and the response to it must be set forth; and

(6) If the pleadings, other documents in the file, or other items of discovery are relevant to the motion, the party relying on them must summarize each relevant document.

(Subd (c) amended effective January 1, 2007; previously repealed and adopted effective July 1, 2001.)

(d) Identification of interrogatories, demands, or requests

A motion concerning interrogatories, inspection demands, or admission requests must identify the interrogatories, demands, or requests by set and number."

These are called "meet and confer letters." This process is hugely burdensome, and highly time-consuming, for any litigant -- not to mention an "out-spouse."

Family Code section 210 reads:

“Except 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, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

This includes all statutes under the Discovery Act, including discovery-related motions, as well as the Evidence Code and any other statutes not expressly covered by the Family Code.

Indeed, in IRMO Boblitt (2014) 223 Cal.App.4th 1004, where a party claimed that the discovery cut-off in post-judgment proceedings did not apply to family law proceedings, the appellate court strictly applied the Discovery Act’s language to preclude a wife from obtaining critical discovery from the husband in a post-judgment proceeding, after the discovery cut-off rule set forth in the CCP had expired. It ignored the wife’s due process argument that without the post-judgment discovery the CCP did not allow, she would be deprived of due process to present her claims or otherwise defend herself. The appellate court ruled that

“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 postjudgment motion to divide the proceeds from sale of the Hedge Avenue property. 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.

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, 63 Cal.Rptr.3d 483, 163 P.3d 160 ["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)).

Here, it appears the date initially set for trial of the action was February 8, 2007.... Thus, the discovery cutoff date was in January 2007, and discovery closed at that time by operation of law.

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.”

Accordingly, it denied her the ability to conduct discovery under the strict terms of the civil Code of Civil Procedure as it related to such discovery. Because that was the outcome that the CCP requires in terms of the discovery cut-off."

The Boblitt outcome created a furor among the family law attorney community. The reason it did was the Court correctly interpreted the existing discovery statutes that apply to family law proceedings, under authority of the CCP. This directly led to the enactment of Family Code section 218, to correct this unjust result.

Family Code section 218 states:

“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 postjudgment 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.”

The reason why this section of the Family Code – a new section – was required was exactly because the Civil Discovery Act applies and indeed controls discovery related applications within family law proceedings, per Family Code section 210.

However, most family law practitioners and many judges don’t get this in the context of motions to compel answers to interrogatories, to production demands, or to other forms of discovery in those proceedings. Instead, they seem to believe that some other, non-statutory, equitable rules apply to enforcing such motions, particularly as they relate to recovering the attorney fees that a party is forced to endure to enforce their discovery rights and obligations – which are mutual obligations. The attorneys argue, or the judges rule, on the motion costs based upon Family Code sections 2030 and section 2031 and not based upon what the Code of Civil Procedure requires. The Family Code sections are all based on need-based arguments. The Code of Civil Procedure discovery enforcement sections are not at all need-based; they instead each require that the prevailing party be order to be paid their “reasonable” attorney fees and costs incurred in connection with a Motion to Compel. But this gets lost in translation.

No one files an Income and Expense Declaration [Judicial Council Form FL-150] in a civil proceeding. In a civil proceeding involving attorney fees incurred for a Motion to Compel, need – and especially ability to pay – is not a relevant consideration. Yet, in family law proceedings discovery motions are only authorized under authority of the Discovery Act, unless one independently adds to the menu a “need’s based” argument under Family Code sections 2030 et seq. Needs” and “ability to pay” under the Family Code sections are irrelevant to the statutory sanctions mechanism of the Code of Civil Procedure.

Regarding general attorney fees requests/applications under the Family Code, Cal. Rules of Court, Rule 5.427 states as follows:

Rule 5.427. Attorney's fees and costs

(a) Application

This rule applies to attorney's fees and costs based on financial need, as described in Family Code sections 2030, 2032, 3121, 3557, and 7605.

(b) Request

(1) Except as provided in Family Code section 2031(b), to request attorney's fees and costs, a party must complete, file and serve the following documents:

(A) Request for Order (form FL-300);

(B) Request for Attorney's Fees and Costs Attachment (form FL-319) or a comparable declaration that addresses the factors covered in form FL-319;

(C) A current Income and Expense Declaration (form FL-150);

(D) A personal declaration in support of the request for attorney's fees and costs, either using Supporting Declaration for Attorney's Fees and Costs Attachment (form FL-158) or a comparable declaration that addresses the factors covered in form FL-158; and

(E) Any other papers relevant to the relief requested.

(2) The party requesting attorney's fees and costs must provide the court with sufficient information about the attorney's hourly billing rate; the nature of the litigation; the attorney's experience in the particular type of work demanded; the fees and costs incurred or anticipated; and why the requested fees and costs are just, necessary, and reasonable.

(c) Response to request

To respond to the request for attorney's fees and costs, a party must complete, file, and serve the following documents:

(1) Responsive Declaration to Request for Order (form FL-320);

(2) A current Income and Expense Declaration (form FL-150);

(3) A personal declaration responding to the request for attorney's fees and costs, either using Supporting Declaration for Attorney's Fees and Costs Attachment (form FL-158) or a comparable declaration that addresses the factors covered in form FL-158; and

(4) Any other papers relevant to the relief requested.

(d) Income and expense declaration

Both parties must complete, file, and serve a current Income and Expense Declaration (form FL-150). A Financial Statement (Simplified) (form FL-155) is not appropriate for use in proceedings to determine or modify attorney's fees and costs.

(1) "Current" is defined as being completed within the past three months, provided that no facts have changed. The form must be sufficiently completed to allow determination of the issues.

(2) When attorney's fees are requested by either party, the section on the Income and Expense Declaration (form FL-150) related to the amount in savings, credit union, certificates of deposit, and money market accounts must be fully completed, as well as the section related to the amount of attorney's fees incurred, currently owed, and the source of money used to pay such fees.

(e) Court findings and order

The court may make findings and orders regarding attorney's fees and costs by using Attorney's Fees and Costs Order Attachment (form FL-346). This form is an attachment to Findings and Order After Hearing (form FL-340), Judgment (form FL-180), and Judgment (Uniform Parentage-Custody and Support) (form FL-250).” [Italics added]."

A discovery motion under the Code of Civil Procedure Discovery Act rules is expressly not applicable to this rule – the Rule of Court is a need’s based rule, only. Motions relating to discovery abuses under the Discovery Act are not need’s-based. They are under the CCP. Relative financial circumstances, whether in terms of income stream or access of money, are expressly not relevant because the Rule makes it clear that it only addresses motions for fees under the Family Code.

Yet, family court judges and commissioners seem to think that they should apply what they view as equitable considerations based upon the relative financial circumstances of the parties – be it income-wise or asset-wise – in imposing the legal-fee consequences for having to make the motion.

There is no requirement whatsoever to submit anything under CRC rule 5.427, including an FL-150 Income and Expense Declaration - unless, arguably, Family Code section 271 sanctions are also requested in the motion to compel. By doing so you invite the court to look at the parties' relative financial circumstances, which a litigant may or may not want it to do. One thing is likely: To the extent that family law courts feel that relative financial circumstances play a role in determining sanctions awards for motions to compel, it will have a chilling affect on the ability of a party forced to file such a motion to recover the expenses for bringing it.

TWA: JULY 27, 2019

Good luck, out there!


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