BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2586|
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THIRD READING
Bill No: AB 2586
Author: Bloom (D)
Amended: 6/16/14 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 6/10/14
AYES: Jackson, Anderson, Lara, Leno, Monning, Vidak
NO VOTE RECORDED: Corbett
ASSEMBLY FLOOR : 77-0, 5/15/14 - See last page for vote
SUBJECT : Family law proceedings
SOURCE : Association of Certified Family Law Specialists
DIGEST : This bill automatically reopens discovery as to the
issues raised in the postjudgment pleadings currently before the
court when a request for order or other motion is filed and
served after entry of judgment in a family law case.
ANALYSIS :
Existing law:
1. Establishes the Civil Discovery Act which entitles any party,
as a matter of right to complete discovery proceedings on or
before the 30th day before the date initially set for trial,
and to have motions concerning discovery heard on or before
the 15th day before the date initially set for the trial.
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2. 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.
3. Provides that unless otherwise provided for by rule or
statute, the rules of practice and procedure applicable to
civil law apply to family law proceedings.
4. Provides a simplified discovery method prior to commencement
of a proceeding to modify or terminate an order for child,
family, or spousal support which allows, up to once a year,
either party to a support order to request a completed Income
and Expense Declaration from the other party.
This bill:
1. Causes discovery to automatically reopen as to the issues
raised in postjudgment pleadings currently before the court
when a request for order or other motion is filed and served
after entry of judgment in a family law proceeding.
3. Provides that the date initially set for trial of an action
is also the date the post judgment proceeding is set for
hearing on the motion or any continuance thereof, or
evidentiary trial, whichever is later.
Background
Family law cases, which are typically accompanied by support and
custody orders, may go on for years after a judgment is entered.
Courts retain continuing jurisdiction over many family law
orders, in order to allow parties the flexibility to seek
modification of support after a change of financial
circumstances, or alter a custody order to facilitate relocation
of one of the parents. Continuing jurisdiction and the
accompanying availability of discovery also allows parties to
prove to the court when one party is hiding assets or otherwise
manipulating the court to avoid a support obligation.
Generally, rules governing practice and procedure (including
discovery) in civil cases apply to family law as well, unless
there is a specific rule or statute designed for family law
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cases. One such statute in the Family Code allows for a
simplified and inexpensive discovery method which allows parties
to request an Income and Expense Declaration up to once a year
to facilitate modification of a support order.
This practice of "reopening discovery" without a court order
after a judgment has been entered has been widely used in family
law, until an appellate decision earlier this year upheld a
strict statutory analysis of a trial court. In In re Marriage
of Boblitt, the trial court found, and the appellate court
affirmed that "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. Sec. 2016.010 et seq.). Accordingly the provisions
of the Civil Discovery Act-including those provisions that
govern the time for completion of discovery-apply to such
proceedings. ? [A]bsent a court order, continuance or
postponement of the trial date does not operate to reopen
discovery proceedings. (In re Marriage of Boblitt, 223
Cal.App.4th 1004, 1022.)
The appellate court also invited the Legislature to address the
inconsistencies between practice and statute with regards to
family law matters and discovery.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 6/16/14)
Association of Certified Family Law Specialists (source)
Executive Committee of the Family Law Section of the State Bar
ARGUMENTS IN SUPPORT : According to the author:
Unlike most civil actions, a family law case often does not
end at the time the case is initially set for trial or a
settlement agreement is reached, resulting in a "final
judgment." Because family law has continuing issues, such
as child custody, visitation, child support, spousal
support, domestic violence, omitted assets or matters over
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which the court has retained jurisdiction, there are
frequently post judgment motions that are filed addressing
significant, substantive issues. Those issues often require
discovery.
Family Code Section 3662 already states that methods of
discovery other than one specific method laid out in that
section are "only" available if a motion for modification or
termination of support is pending. Most family law
attorneys have relied on this language to routinely issue
and respond to formal discovery during post-judgment support
(and other) proceedings.
However, this year the Third Appellate District issued a
published opinion in the case In re Marriage of Boblitt
holding that discovery is not open during family law
post-judgment motions, and rather the parties are required
to file a separate motion to seek a court order to permit
discovery. Such a motion would increase the cost of the
litigation, increase attorney fees, and would significantly
delay the hearing on the substantive issue, as a motion for
discovery would need to be filed and heard before the
discovery could even be issued.
ASSEMBLY FLOOR : 77-0, 5/15/14
AYES: Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,
Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian
Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,
Dababneh, Dahle, Daly, Dickinson, Eggman, Fong, Fox, Frazier,
Beth Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell,
Gray, Grove, Hagman, Hall, Harkey, Roger Hernández, Holden,
Jones, Jones-Sawyer, Levine, Linder, Logue, Lowenthal,
Maienschein, Medina, Melendez, Mullin, Muratsuchi, Nazarian,
Nestande, Olsen, Pan, Patterson, Perea, John A. Pérez, V.
Manuel Pérez, Quirk, Quirk-Silva, Rendon, Ridley-Thomas,
Rodriguez, Salas, Skinner, Stone, Ting, Wagner, Waldron,
Weber, Wieckowski, Wilk, Williams, Yamada, Atkins
NO VOTE RECORDED: Donnelly, Mansoor, Vacancy
AL:JA:d 6/17/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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