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.
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
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
1100 et seq., and
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
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
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
(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
(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
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.
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."
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
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
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
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.
(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
(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!