BILL ANALYSIS Ó AB 2586 Page 1 ASSEMBLY THIRD READING AB 2586 (Bloom) As Amended April 21, 2014 Majority vote JUDICIARY 10-0 ----------------------------------------------------------------- |Ayes:|Wieckowski, Wagner, | | | | |Alejo, Chau, Dickinson, | | | | |Garcia, Gorell, | | | | |Maienschein, Muratsuchi, | | | | |Stone | | | |-----+--------------------------+-----+--------------------------| | | | | | ----------------------------------------------------------------- SUMMARY : Re-opens discovery when a post-judgment motion is filed in a family law proceeding. Specifically, this bill provides that, in a family law proceeding, when a request for order or other motion is filed and served after entry of a judgment, discovery automatically reopens as to the issues raised in the pleadings. Provides that, for purposes of determining when the discovery period ends and when discovery motions must be heard, the trial date means the date the post-judgment proceeding is set to be heard or the date of the evidentiary trial, whichever is later. EXISTING LAW : 1)Unless otherwise provided, applies the rules of practice and procedure generally applicable to civil actions, including specified provisions of the Code of Civil Procedure (CCP), to proceedings under the Family Code. 2)Provides a simplified and inexpensive discovery method prior to commencement of a proceeding to modify or terminate an order for child, family, or spousal support. In particular, allows, up to once every year, either party to a support order to request a completed Income and Expense Declaration from the other party even in the absence of a pending motion. 3)Except as otherwise provided, entitles any party, as a matter of right, to complete discovery proceedings on or before the 30th day before the date initially set for the trial and to AB 2586 Page 2 have motions concerning discovery heard on or before the 15th day before the date initially set for the trial. 4)Allows the court, on the motion of any party, to grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen the discovery date after a new trial date has been set. Requires that such motion be accompanied by a meet and confer declaration, as provided. FISCAL EFFECT : None COMMENTS : Unlike other areas of the law, family law cases go on for years even after a judgment is issued. Custody and support orders, which can last for years, may require multiple modifications, based on changing incomes and changing circumstances. Missed assets may be discovered after issuance of a judgment dividing property. Each of these issues may require discovery. Until recently, family law practitioners regularly conducted post-judgment discovery, after a new motion was filed, without prior approval of the court. However, a recent appellate court decision held there is no automatic right to discovery and required parties to seek court approval prior to discovery. This bill seeks to abrogate that decision and instead permit parties to conduct automatic discovery for post-judgment motions, without the need for prior court approval. The Third Appellate District recently found that there was no right to automatically re-open discovery when a post-judgment motion is filed in a family law proceeding. (In re Marriage of Boblitt (2014) 223 Cal.App.4th 1004.) In that case, a wife objected to the court adding issues to the post-judgment evidentiary hearing on property issues less than 30 days before the hearing, effectively foreclosing her ability to do discovery of those additional issues. In upholding the trial court's ruling against her, the appellate court found that once discovery closes on the original trial date, discovery will only reopen upon a motion for leave of court or agreement of the other party. The appellate court acknowledged that existing law is not particularly clear and that the court's ruling was based on construing the statute, and suggested that the Legislature or the Judicial Council might want to clarify the law: AB 2586 Page 3 It might behoove the Legislature, or the Judicial Council, to specifically address the application of the Civil Discovery Act to postjudgment family law proceedings. (See Fam. Code, Section 211 ["Notwithstanding any other provision of law, the Judicial Council may provide by rule for the practice and procedure in proceedings under this code."].) In the absence of specific guidance, however, we are left to construe what law there is, and we construe the existing law to require a motion to reopen discovery in a marital dissolution proceeding when discovery is desired regarding a matter raised by a postjudgment motion. Of course, the parties can always agree between themselves to permit postjudgment discovery even without a court order. (Id. at 10024, footnote 10.) This bill takes up the court's suggestion to specifically address discovery rules in post-judgment family law proceedings. Specifically, this bill provides that parties to post-judgment motions in family law proceedings may automatically conduct discovery on any issue raised in the new pleadings, without the need for prior court approval. Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334 FN: 0003318