Mcle Self-study Article: Integration of the Family Code, Evidence Code, and Code of Civil Procedure for Effective Discovery Pursuant to the Fiduciary Duties

• Publication year: 2015
• Author: Jill Hersh

MCLE SELF-STUDY ARTICLE: Integration of the Family Code, Evidence Code, and Code of Civil Procedure for Effective Discovery Pursuant to the Fiduciary Duties

Jill Hersh

Jill Hersh is the managing attorney for the Hersh FamilyLaw Practice, a trial and appellate family law practice. Jill is a Certified Family Law Specialist whose firm specializes in a wide variety of family law matters. Jill has argued before the Supreme Courts of California and Vermont and was the lead trial and appellate lawyer in published appellate decisions, She is the 2006 recipient of the CLAY award and is a fellow of the American Academy of Matrimonial Lawyers and the International Academy of Matrimonial Lawyers.

(Check the end of this article for information on how to access 1 hour of Legal Specialization in Family Law and 1 hour of general self-study credits.)

Family law attorneys have the unique opportunity to conduct discovery within a statutory scheme that is not available to lawyers practicing in other civil actions. Effective discovery in a family law case requires an integration of the Fiduciary Duties, the Evidence Code, and the Civil Discovery Act (Code of Civil Procedure sections 2016 through 2036.030, ("Discovery Act")). Family Law practitioners need to understand how to utilize this integrated system of statutes to maximize the benefits of the Fiduciary Duties and to cure their limitations as a discovery tool if used in isolation from the Evidence Code and the Discovery Act. The purpose of this article is to discuss how to integrate these three statutory schemes effectively on behalf of your clients and to the advantage of your practice.¹

Discovery serves two functions: (1) the acquisition of information and (2) the creation of admissible evidence for purposes of a hearing or trial. Failure to know the pertinent provisions of the Evidence Code will result in a failure to acquire information in a form that can be submitted to the court. Yet, discovery pursuant to the Fiduciary Duties does not contain any embedded mechanism that will make the discovered information admissible. This is in contrast to discovery within the Discovery Act, which by statute is constructed through verifications to be admissible. Therefore, the Code of Civil Procedure needs to be used in order to render the acquired information useful in any judicial proceeding.

It is advantageous to use the Fiduciary Duty statutes for discovery of financial information. Request for the information is less cumbersome. The production deadline has no mandated 30/35-day delay. There is a lower threshold for discoverability because the standard for producing the information is driven by status alone and need only be relevant. The status mandating production is that of being married.² The relevance of the requested information is implied from the marital status if the information pertains to community, arguably community, or separate property. (See Cal. Fam. Code §§ 2104(c)(1) & 2102(c).) In other words, there is prima facie relevance or presumed relevance if the parties are married and the information pertains to either's financial affairs. Therefore, relevance need not be proved and is intrinsic because of marital status and the concomitant elevated right to information is a matter of public policy embedded in the Family Code. (See Cal. Fam. Code § 2100.) This presumed, prima facie relevance is reflected in the scope of what must be disclosed under Cal. Fam. Code §§721, 1100(e), 2102, 2104, & 2105 and reflected in the scope of the Family Code's inter-spousal fiduciary duties. This elevated right results in unfettered access because the parties equally are entitled to possess the relevant financial information.³ Therefore, the threshold for permissible discovery is lower and broader than under the Code of Civil Procedure and the entitlement to information under the Fiduciary Duties is consequently superior in quality to the entitlement to information using the Discovery Act.⁴ In fact, utilizing the Fiduciary Duty Code sections instead of the Discovery Act may shift the burden to the party resisting the discovery to demonstrate why production need not occur. This shifted burden would require the resisting party to show why the requested information is not relevant or why he/she should have superior access over his/her spouse. This is a very difficult and high threshold for the resisting party to meet because of the protected right-to-know inherent in the marital relationship under California law.

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Refusing discovery under the Family Code exposes the resisting party to a claim for breach of the fiduciary duties because of his/her wrongful failure to disclose the requested information.⁵ This exposure may result in various remedies by the requesting party. These could be any or all of the following: Motion to Enforce Compliance with the Fiduciary Duty of Producing Information, Motion for a Protective Order Compelling the Production/Inspection of the Information, Motion for a Protective Order to Prevent the Failure to Disclose Information, Sanctions for Violation of the Fiduciary Duties, and/or Attorneys Fees for the Necessity of Compelling Compliance with the Fiduciary Duties of Disclosure, etc.

It is necessary to establish a procedural foundation to understand the "pitfalls" of pursuing financial discovery using only the Family Code and to...