The Civil Discovery Act applies in Family Law. Most of our fellow family law practitioners will probably not argue with this notion, despite the fact that ours is an area of law in which “some informality and flexibility have been accepted.” However, the court in Boblitt clarified the implications of this fact as it applies to post-judgment hearings in family law matters.
As a fundamental and crucial rule of the Civil Discovery Act, the Code of Civil Procedure section 2024.010 et seq. provides that discovery must be completed “on or before the 30th day before the date initially set for the trial of the action” and absent a court order or an agreement of the parties, “continuance or postponement of the trial date does not operate to reopen discovery proceedings.” Because post-judgment motions do not constitute new cases, discovery is not automatically re-opened upon the filing of a post-judgment motion and the initial discovery deadlines apply.
In Boblitt, the Wife contended that she was deprived of her due process right when the court granted the Husband’s motion to add a reimbursement claim less than 30 days before a post- judgment hearing. The court stated, “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 post- judgment motion [on the reimbursement claims]. 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.”
Although discovery does not reopen automatically upon the filing of a post-judgment motion, the Boblitt court clearly stated that discovery on post-judgment matters is indeed available via motion to reopen discovery after judgment, or via an agreement between the parties.
So although the area of family law may give off the air of informality and flexibility, the rules apply; it is imperative that we understand them and prepare accordingly.
Amy Kapner and Robert Brandt practice family law with the California law firm of Feinberg, Mindel, Brandt & Klein, LLP