Marriage of Boblitt, (2014) 223 Cal.App.4th 1004, held that there is no automatic right to conduct discovery under the Civil Discovery Act in connection with a post judgment motion in a family law proceeding. Furthermore, it held that, except under limited circumstances, family law litigants must file a motion under Code of Civil Procedure Section 2024.050, seeking leave to reopen discovery in a post judgment family law proceeding.
The Third Appellate Court knew the ruling would be controversial and invited the California Legislature to specifically address the application of the Civil Discovery Act to post judgment family law proceedings. The new legislation, recently passed into law and written and sponsored by members of the Association of Certified Family Law Specialists was shepherded through committees by Assembly Member Richard Bloom (Santa Monica), a former family law practitioner. AB 2586 met with overwhelming support by the Senate and Assembly Judiciary Committees. Finally, Governor Brown signed the bill into law on July 21, 2014.
Section 218 is now added to the Family Code to read:
“218. 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 post judgment 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.”
-CREDIT GIVEN TO COOPER-GORDON from SAN LUIS OBISPO for the above blog entry, elegant and concise in it’s reporting of what has happened.
Although a number of family law bloggers have explored the subtle nuances of this change in legislation, I’m not sure it requires the level of navel-gazing I have viewed. The code section says “automatically reopen”. How complicated is that? Well, when lawyers are involved, no opportunity for gamesmanship is passed up. That means that even though clearly the legislature intended this to be a useful piece of legislation, there are sure to be oppositions to attempts to reopen discovery based upon the paradoxical timeline created.
Envision this: you file a request for order for child support. The court sets a date, usually within a month or two. Your discovery can’t be promulgated before you filed the RFO right? So you file it right away, except most discovery vehicles require 30 days for a response, meaning any motion to compel or quash or whatever may run after the deadline established by 2024.020.
The key language of ccp 2024.030 is “whichever is later”. Since the Elkins decision requires courts to hear live testimony, and such testimony isn’t going to be heard usually at the first hearing (although that might be refreshing as I have seen it done in one civil harassment case in Marin and it was amazing) it looks like you are going to get more than a few days to finish discovery. But guaranteed, any lawyer is going to scream “time’s up!” if they get half a chance.
