Elkins Trumps Speed: the Right to Discovery Under the Domestic Violence Protection Act

• Jurisdiction: California,United States
• Author: Written by Ryan D. Wedeking
• Publication year: 2022
• Citation: Vol. 44 No. 1

ELKINS TRUMPS SPEED: THE RIGHT TO DISCOVERY UNDER THE DOMESTIC VIOLENCE PROTECTION ACT

Written by Ryan D. Wedeking

Are parties to a request for domestic violence restraining order ("DVRO") under California's Domestic Violence Prevention Act¹ ("DVPA") entitled to discovery? If so, to what extent?

These questions have been long been debated in the family law bar. The controversy arises out of the tension between a responding party's qualified right to a hearing on a request for DVRO within 21 days,² and a parties' general right to discovery,³ which, depending on the type of discovery, may take more than 21 days to complete.⁴

The DVPA is part of the Family Code, whose procedure is governed by the Code of Civil Procedure, unless otherwise provided by rule or statute.⁵ Under the Code of Civil Procedure, parties have a general right to conduct discovery into any unprivileged matter relevant to the subject matter of the action before the court, including any hearing on a motion.⁶ Discovery is a right "...unless statutory or public policy considerations clearly prohibit it."⁷ The right to discovery includes the right to use any form of discovery authorized by the Code of Civil Procedure, with no need to seek leave of court to do so.⁸ Even where a trial court has cause to limit discovery by order, trial courts should "...prefer partial to outright denials of discovery."⁹ Discovery rights are to be liberally construed¹⁰ to further the legislature's intent that discovery ensure fairness at contested hearings, including by eliminating gamesmanship, deterring perjury, allowing parties to efficiently collect evidence and develop arguments, reduce the number of contested issues, and expedite proceedings.¹¹

Given the enormous liberty interests at stake in DVRO hearings, including the potential loss of physical and legal custody over one's children,¹² the right to bear arms,¹³ control and possession of one's own dwelling and of other real and personal property,¹⁴ and the prospect of having to pay the other party child support, spousal support, attorney's fees and costs, and other things,¹⁵ a substantial impingement on a party's discovery rights ahead of a DVRO hearing in favor of expediency would almost certainly violate Elkins v. Superior Court, 41 Cal. 4th 1337 (2007), which held that when the public policy in favor of "fast-track" proceedings conflicts with a litigant's due process rights, including a party's request for additional discovery, due process rights should prevail.¹⁶

No statute or rule limits the right to discovery in DVPA proceedings.¹⁷ To the contrary, the DV-100 Request for Domestic Violence Restraining Order form and DV-120 Response to Request for Domestic Violence Retraining Order forms require parties to exchange financial discovery where the moving party has requested child support, spousal support, and/or attorney's fees as part of their requested relief.¹⁸ Except in rare circumstances,¹⁹ this requires the parties to exchange FL-150 Income and Expense Declarations prior to the hearing, which

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require the disclosure of extensive financial information and the production of financial documents like pay stubs, tax returns, schedules reflecting investment income, and documents related to any claimed financial hardship.²⁰

The only potential limitation on discovery in DVRO proceedings is timing, which in most cases can be easily negotiated. Under the DVPA, the respondent has a qualified right to a hearing on a request for DVRO within 21 days from the date of issuance of the temporary restraining order.²¹ The respondent's right to a hearing within 21 days is a qualified right because the court, upon a finding of good cause, can order the hearing set out 25 days or more,²² and continuances to the hearing can be granted either sua sponte or upon request of either party.²³ The respondent is entitled to one continuance "...as a matter of course..." for a "...reasonable period...,"²⁴ which, in the author's experience, can be 60 days or more from the initial hearing date.

Assuming the Court grants a continuance of the hearing on the DVRO, which can be granted to either party for "good cause," including the need to complete discovery,²⁵ there should be sufficient time to complete all manner of discovery before the hearing date, including:

• Deposition of a party, which only requires 10 days' notice²⁶ and whose notice can be served concurrently with the request for DVRO and hearing notice unless 1) the propounding party is the petitioner; 2) there has been no action pending for at least 20 days before the filing of the DVRO request; and 3) the court does not grant petitioner leave to serve the deposition notice earlier²⁷);
• Deposition subpoenas for personal appearance and production of documents to nonparty witnesses, which only require "...sufficient time in advance of the deposition to provide the deponent a reasonable opportunity to locate and produce documents..." and "...reasonable time to travel to the place of deposition..."²⁸);
• Deposition subpoenas for business records, which require a response 20 days from issuance or 15 days from service, whichever is later²⁹; and
• Document and inspection demands, form interrogatories, special interrogatories, and requests for admission, which each require a response within 30 days.³⁰

The only foreseeable scenario in which a party who wishes to conduct discovery ahead of a DVRO hearing would be limited to 21 days in which to do so is where 1) that party is the moving party; 2) the responding party does not request a continuance; and 3) the moving party's request for a continuance is denied for lack of "good cause".³¹ Even where the court denies the moving party a continuance for lack of good cause to propound discovery, which, per Elkins, should only be made "...in an atmosphere of substantial justice..."³², the moving party would still have sufficient time to conduct some types of discovery within 21 days without seeking leave of court, including party and non-party oral depositions.³³ In such circumstances, the moving party could also request that the court shorten the responding party's time to respond to other forms of discovery like document demands, interrogatories, and requests for admission that normally take longer than 21 days to complete.³⁴

Although parties have an obvious statutory right to conduct discovery in a DVPA proceeding, some practitioners nevertheless claim that there is no such right, arguing that 1) a DVRO hearing is a "trial" and is thus subject to the 30-day pre-trial discovery cut-off pursuant to Code of Civil Procedure section 2024.020; and 2) the case Thomas v. Quintero, 126 Cal. App. 4th 635 (2005) holds that there is no right to discovery under the DVPA. Both of these contentions are erroneous.

THE 30-DAY PRE-TRIAL DISCOVERY CUT-OFF DOES NOT APPLY TO DVRO HEARINGS

The 30-day pre-trial discovery cut-off under Code of Civil Procedure section 2024.020 cannot apply to DVRO hearings for a few reasons. First, in light of the fundamental liberty interests at stake in DVPA proceedings, interpreting section 2024.020 to mean that a DVRO hearing is a "trial" for purposes of that statute such that, ab initio, neither party to a DVPA proceeding has any right to discovery, would be so offensive to the strong public policies in favor of discovery and affording family law litigants full due process³⁵ that no court could reasonably find that the legislature intended that result. It is a basic principle of statutory interpretation that such absurd results are to be avoided.³⁶

Second, case law holds that a hearing on a request for DVRO is a hearing on a "family law motion"³⁷, not a "trial," which would be subject to the discovery cut-off under Code of Civil Procedure section 2024.020. The court in Marriage of Reichental, 73 Cal. App. 5th 396 (2021) recently clarified that when a dissolution of marriage action is pending, a request for DVRO is merely a hearing on a pre-trial motion within the dissolution of marriage proceeding, not an "ancillary" action unto itself.³⁸ The status of a DVRO hearing as a hearing on a "motion" and not a "trial" is further reflected by the fact that DVRO hearings do not follow key pre-trial procedure. For instance, unlike for trials, there is no requirement that parties to a DVPA proceeding exchange trial briefs, exhibit lists, or witness lists, as is

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required under the local rules of many local jurisdictions³⁹, or designate expert witnesses as required by Code of Civil Procedure section 2034.210 et seq. In fact, the only thing that the DV-109 Notice of Court Hearing says about pre-hearing procedure related to exhibits and witnesses is that parties "...may bring witnesses and other evidence[]" to the hearing.⁴⁰

Third, the argument that the 30-day discovery cut-off applies to DVRO hearings is directly contradicted by DVRO pre-hearing procedure, which, as discussed above, within 21 days of the hearing requires that the parties exchange written financial discovery and documents where the moving party has requested either child support, spousal support, or attorney's fees as remedies in the request for DVRO.⁴¹

DISCOVERY IN DVPA PROCEEDINGS IS NOT LIMITED BY PUBLISHED CASE LAW

No published case limits a party's right to discovery in proceedings under the DVPA. The citation by some practitioners to Thomas v. Quintero, 126 Cal. App. 4th 635 (2005) as authority that discovery is prohibited in DVPA proceedings is erroneous for a few reasons. First, as stated above, parties have a general statutory right to discovery, including with respect to the "...determination of any motion..." That right to discovery is not limited by any section of the DVPA.⁴² Second, Thomas isn't a DVPA case and contains no discovery-related precedential holding. Rather, Thomas is a landlord-tenant civil harassment case...