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

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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 whose only precedential holding states that a petition for civil harassment restraining order brought under Code of Civil Procedure section 527.6 is a "cause of action" for purposes of California’s anti-SLAPP statute43, and is thus subject to anti-SLAPP motions.44 To the extent that the Thomas court discusses limitations on discovery in civil harassment restraining order proceedings, it does so only as dictum because such commentary was unnecessary for the court to reach its holding that civil harassment restraining order petitions are "causes of action" subject to California’s Anti-SLAPP statute.45

In Thomas, a disgruntled tenant of landlord distributed leaflets outside of landlord’s church stating that landlord had acted unscrupulously toward tenant and others.46 Landlord then filed an ex parte application for a civil harassment restraining order against tenant under Code of Civil Procedure section 527.6, which was granted and a hearing on the civil harassment restraining order was set.47 Tenant requested and was granted a continuance on the civil harassment restraining order hearing of 49 days, and in the interim filed an anti-SLAPP motion to strike landlord’s civil harassment restraining order.48 The trial judge denied tenant’s anti-SLAPP motion on the basis that a petition for civil harassment restraining order was not a "cause of action" subject to an anti-SLAPP motion, and that the time involved in litigating an anti-SLAPP motion would cause undue delay to civil harassment restraining order hearings, which, like DVRO hearings, are designed to be heard on an expedited basis.49

The court of appeal reversed, holding that a petition for civil harassment restraining order does constitute a "cause of action" for purposes of the anti-SLAPP statute, and is thus subject to an anti-SLAPP motion.50 That is the only precedential holding of the case. All commentary regarding the trial court’s concerns that anti-SLAPP motions may unduly delay civil harassment restraining order hearings because the Anti-SLAPP statute allows for discovery, is dictum because that commentary was not necessary for the appellate court to reach its holding.51 While dicta may be persuasive authority, it is not binding authority.52

Some family law attorneys cite a footnote to that dictum for the proposition that there is no right to discovery in DVPA proceedings. In that footnote, the Thomas court observed that "[t]here is no provision under section 527.6 allowing for discovery, and in any case, under the civil harassment scheme there is insufficient time in which to conduct discovery…",53 citing Byers v. Cathcart (1997) 57 Cal.App.4th 805 [67 Cal.Rptr.2d 398] and Diamond View Limited v. Herz (1986) 180 Cal.App.3d 612 [225 Cal.Rptr. 651]. The court’s reasoning is confused. Code of Civil Procedure section 527.6 need not specifically "allow" discovery because litigants have a general right to discovery without seeking leave of court.54 Additionally, there indeed can be sufficient time to complete discovery (e.g. oral depositions) without seeking leave of court within 21 or 25 days.55 A party can also request that the court shorten the time in which the responding party has to respond to allow other forms of discovery to be completed within the 21 or 25 days,56 or, as happened in Thomas and frequently happens in DVRO proceedings, the court can grant either party a continuance upon a showing of good cause.57 Furthermore, neither Byers nor Diamond View Limited holds there is no right to discovery in civil harassment restraining order cases.58 Byers and Diamond View Limited merely observe that section 527.6 contemplates an expedited proceeding in which the parties have less time than they otherwise would for discovery.59

Troublingly, at least one unpublished court of appeal opinion, Alecse v. Moda (Cal. Ct. App., Nov. 6, 2014, No. B245653) 2014 WL 5765662, has cited the Thomas dictum for the erroneous proposition that there is no right to discovery in DVPA proceedings.60 In Alesce, girlfriend filed a request for DVRO against boyfriend, alleging that

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boyfriend abused her and her pet dogs.61 In his response, boyfriend denied girlfriend’s abuse allegations and filed his own request for DVRO, alleging that girlfriend had abused him.62 Boyfriend then "sought" to depose girlfriend and "subpoena records"63 from girlfriend and two nonparties.64 The trial court quashed the deposition of girlfriend, but allowed boyfriend to serve the subpoenas on the nonparties.65 After a hearing, which, as is unfortunately often the case with DVRO hearings, took place on multiple days over two months, the trial court issued a five year DVRO against boyfriend, finding that girlfriend "…had proven ‘so many acts of domestic violence, the court could not list them in…five minutes[.]’"66 Boyfriend appealed, in part based on the trial court’s quashing of girlfriend’s deposition.

The Alesce court, citing the footnote dictum in Thomas, upheld the trial court’s quashing boyfriend’s deposition notice to girlfriend, holding that the "…full panoply…" of discovery tools are not available under the DVPA, reasoning that "…restraining order proceedings under the DVPA…are…streamlined to ensure that victims of abuse can quickly obtain protection"67, that "[p]ermitting pre-trial discovery would be inconsistent with this purpose,"68 and that "Elkins did not purport to lay down a blanket rule requiring full-blown pre-trial discovery in all Family Code proceedings."69

The court could not be more mistaken. Elkins requires that Family Law litigants be afforded at least the same procedural due process rights as civil litigants70, who are entitled to the "full panoply" of discovery with respect to any motion.71 Second, even assuming, arguendo, that the dictum in Thomas were a precedential holding regarding civil harassment restraining order proceedings, it is doubtful that it would extend to proceedings under the DVPA because the two have distinct evidentiary rules and capacities to impinge upon the liberty interests of the parties. Regarding the evidentiary rules, unlike the DVPA, which only allows the court to issue a DVRO upon the declaration or live testimony or additional evidence of the moving party, the civil harassment statute allows the Court to receive "any testimony that is relevant," which would include hearsay.72 The admissibility of hearsay evidence in a civil harassment restraining order proceeding potentially reduces the discovery burden on civil harassment restraining order litigants to a significant degree which is unavailable to litigants in a DVRO proceeding.

Additionally, while the burden of proof for granting a civil harassment restraining order is "clear and convincing evidence"73 the burden of proof for granting a DVRO is "preponderance of the evidence,"74 a lower evidentiary threshold, which, ceteris paribus, increases the likelihood that the restraining order will be granted, and in turn increases the potential need for responding parties to more closely scrutinize and discover evidence favorable to their case ahead of the hearing. The potential need for discovery ahead of a DVRO hearing is particularly acute in light of the holding in Marriage of Davila and Mejia 29 Cal.App.5th 220, 227 (2018) that the court may admit evidence of acts of domestic violence through live testimony at the hearing that were not alleged in the request for DVRO.75 Unless a responding party conducts discovery ahead of a DVRO hearing, he may be blindsided by any number of allegations not included in the moving party’s request for DVRO.

Also, as discussed above, the liberty interests at stake for a respondent in a proceeding under the DVPA are tremendous, and potentially far greater than they are under the civil harassment statute. Whereas a civil harassment restraining order may restrain a party from contact with a non-family member for a period of up to five years,76 a finding of abuse under the DVPA may leave a parent without contact with her child (or another family member) for up to five years and, even where the child is not named a protected party under the DVRO, will trigger the Family Code section 3044 evidentiary presumption that it is not in the best interest of the child for the restrained parent to have joint or sole physical or legal custody of the child.77 Under Elkins, it must be wrong that a parent could lose contact with and custody of her six-year-old child for five years without full due process, including the right to the "full panoply" of discovery rights available to other civil litigants.78

CONCLUSION

The right to discovery is expansive and fundamental to the fairness of any contested proceeding,79 including proceedings under the DVPA. The right to discovery under the DVPA is not limited by rule or statute.80 Although the public policy that DVRO requests be heard expeditiously is compelling for both the petitioner and respondent81, the Elkins court made clear that where the public policies of expediency and due process conflict, due process must prevail.82

* Ryan D. Wedeking is an associate at Withers Bergman LLP, based in its Century City office, where his practice is focused on high net worth divorce litigation. He earned his J.D. from the UCLA School of Law where he founded and was president of the UCLA Family Law Society and received the Martin C. Pachter Prize for excellence in family law. He earned his B.A. from Gonzaga University.

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Notes:

1. CAL. FAM. CODE § 6200 et seq.

2. CAL. FAM. CODE § 245.

3. CAL. CIV. PROC. CODE § 2017.010.

4. See, e.g., CAL. CIV. PROC. CODE §§ 2030.260, 2031.210, and 2033.250.

5. CAL. FAM. CODE § 210.

6. CAL. CIV. PROC. CODE § 2017.010.

7. Id. at 541

8. Greyhound Corp. v. Superior Court In and For Merced County, 56 Cal. 2d 355, 388 (1961); See also CODE CIV. PROC. §§ 2025.210, 2030.020, 2031.020, and 2033.020.

9. Greyhound Corp., 56 Cal. 2d at 383.

10. Smith v. Superior Court, 189 Cal. App. 2d 6, 10 (1961).

11. Id. at 275. See also Williams v. Superior Court, 3 Cal. 5th 531, 540 (2017).

12. Troxel v. Granville, 530 U.S. 57, 65 (2000).

13. District of Columbia v. Heller, 554 U.S. 570, 595 (2008).

14. Meyer v. Nebraska, 262 U.S. 390, 399 (1923).

15. CAL. FAM. CODE § 6340 et seq.

16. Elkins v. Superior Court, 41 Cal. 4th 1337, 1365 (2007). See also In re Marriage of Seagondollar, 139 Cal. App. 4th 1116, 1127 (2006) (denying litigant a chance to prepare for hearing and present evidence is an abuse of discretion) and In re Marriage of Hoffmeister, 161 Cal. App. 3d 1163, 1169 (1984) ("[t]he trial judge must exercise his discretion with due regard to all interests involved, and the refusal of a continuance which has the practical effect of denying the applicant a fair hearing is reversible error. [Citations.]" [citation] Good cause for a continuance may be established where a party has been surprised by unexpected testimony and requires a postponement to enable him to meet it.

17. See generally CAL. FAM. CODE § 6200 et seq. and CAL. R. CT. 5.12.

18. Faton v. Ahmedo, 236 Cal. App. 4th 1160, 1171 (2015).

19. If only child support and not spousal support or attorney’s fees are being requested, the party is not receiving government benefits and is a W-2 employee, she may alternatively file the FL-155 Financial Statement (Simplified).

20. Jud. Council Cal. forms DV-100 Request for Domestic Violence Restraining Order (2022), DV-120 Response to Request for Domestic Violence Restraining Order (2022), and FL-150 Income and Expense Declaration (2019).

21. CAL. FAM. CODE §§ 242(a), 245(b).

22. Id.

23. Id.

24. CAL. FAM. CODE § 245(a).

25. Elkins, 41 Cal. 4th at 1365.

26. CAL. CIV. PROC. CODE § 2025.270.

27. CAL. CIV. PROC. CODE § 2025.210.

28. CAL. CIV. PROC. CODE § 2020.220(a).

29. CAL. CIV. PROC. CODE § 2020.410(c).

30. CAL. CIV. PROC. CODE §§ 2030.260, 2031.210, and 2033.250.

31. CAL. FAM. CODE § 242(a).

32. Elkins, 41 Cal. 4th at 1365.

33. CAL. CIV. PROC. CODE §§ 2020.220(a) and 2020.270.

34. CAL. CIV. PROC. CODE §§ 1985.3(h) (subpoena duces tecum seeking consumer records, 2025.270 (oral depositions), 2030.260(a) (interrogatories), 2031.260(a) (document demands), and 2033.250(a) (requests for admission).

35. Elkins, 41 Cal. 4th at 1365. See also Seagondollar, 139 Cal. App. 4th at 1127 (denying litigant a chance to prepare for hearing and present evidence is an abuse of discretion) and Hoffmeister, 161 Cal. App. 3d at 1169 ("[t]he trial judge must exercise his discretion with due regard to all interests involved, and the refusal of a continuance which has the practical effect of denying the applicant a fair hearing is reversible error. [Citations.]" [citation] Good cause for a continuance may be established where a party has been surprised by unexpected testimony and requires a postponement to enable him to meet it.)

36. Tuolumne Jobs & Small Business Alliance v. Superior Court, 59 Cal. 4th 1029, 1037 (2014).

37. S.A. v. Maiden, 229 Cal. App. 4th 27, 37 (2014).

38. In re Marriage of Reichental, 73 Cal. App. 5th 396, 417 (2021).

39. See, e.g. SUP. CT. CAL., L.A. LOCAL R. 5.14 AND SUP. CT. CAL., S.F. LOCAL R. 11.13.

40. Jud. Council Cal. form DV-109 Notice of Court Hearing (2022).

41. Jud. Council Cal. forms DV-100 Request for Domestic Violence Restraining Order (2022) and DV-120 Response to Request for Domestic Violence Restraining Order (2022).

42. CAL. CIV. PROC. CODE § 2017.010 and CAL. FAM. CODE § 6200 et. seq.

43. Code Civ. Proc. § 425.16.

44. See generally Thomas v. Quintero, 126 Cal. App. 4th 641 (2005).

45. People v. Valencia, (2011) 201 Cal. App. 4th 922, 929; See also People v. Pearson (1986) 42 Cal. 3d 351, 358 (holding that the portion of a decision following that part which is necessary to reverse a trial court rule is dictum).

46. Thomas, 126 Cal. App. 4th at 641.

47. Id. at 641-643.

48. Id.

49. Id. at 646.

50. Id.

51. Valencia, 201 Cal. App. 4th at 929; See also Pearson, 42 Cal. 3d at 358.

52. Valencia, 201 Cal. App. 4th at 929.

53. Thomas, 126 Cal. App. 4th at 649.

54. CAL. CIV. PROC. CODE § 2017.010.

55. CAL. CIV. PROC. CODE § 2025.270.

56. CAL. CIV. PROC. CODE §§ 1985.3(h), 2030.260(a), 2031.260(a), and 2033.250(a).

57. CAL. FAM. CODE § 245(b).

58. See generally Byers v. Cathcart, 57 Cal. App. 4th 805 (1997) and Diamond View Limited v. Herz, 180 Cal. App. 3d 612 (1986).

59. Id.

60. Alecse v. Moda, No. B245653, 2014 WL 5765662 (Cal. Ct. App., Nov. 6, 2014).

61. Id.

62. Id.

63. Although the record is imprecise, it appears that the subpoenas which boyfriend served were subpoenas duces tecum.

64. Alecse, at *1.

65. Id.

66. Id. at *2.

67. Id. at *2.

68. Id.

69. Id.

70. Elkins, 41 Cal. 4th at 1368.

71. CAL. CIV. PROC. CODE § 2017.010 and Greyhound Corp., 56 Cal. 2d at 388.

72. Dean Hansell and Bryant Y. Yang, The Use of Hearsay During Restraining Order Hearings, DAILY JOURNAL (June 22, 2021) .

73. CAL. CIV. PROC CODE § 527.6(i).

74. CAL. EVID. CODE § 115.

75. In re Marriage of Davila and Mejia, 29 Cal. App. 5th 220, 227 (2018).

76. CAL. CIV. PROC. CODE § 527.6(j)(1).

77. CAL. FAM. CODE §§ 3044 and 6345.

78. Elkins, 41 Cal. 4th at 1368 and Greyhound Corp., 56 Cal. 2d at 388.

79. Greyhound Corp., 56 Cal. 2d at 388.

80. See generally CAL. FAM. CODE § 6200 et seq. and CAL. R. CT. 5.12.

81. S.A., 229 Cal. App. 4th at 40.

82. Elkins, 41 Cal. 4th at 1364-1365.