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Boblitt Case Notes

Boblitt Case Notes

Published in In Chancery (Contra Costa County Family Law Section Newsletter)

March 2014

By David M. Lederman, Esq.

“The Rules of Civil Procedure Do Apply in Family Law” – Marriage of Boblitt, (Super. Ct. No. 04FL00159) C072685, filed 2/7/14 (certified for partial publication):

The following exchange between counsel and a court occurred before Judge Roman in Sacramento:

“Adverting to the deposition of husband, the court asked wife’s counsel if she got “an order allowing [her] to take that second deposition as required by the Code of Civil Procedure.” She replied, “I don’t know that that’s required because this is post judgment. It’s a separate case.” … As the discussion continued, the court asked if they could “all agree, you can’t just send a second deposition notice just because you want to, right?” Wife’s attorney replied, “I think in family law, not in civil law, but in family law there is a recognition that post-judgment motions act as a separate and individual case when it’s post judgment . . . .”

The 3rd DCA in Sacramento disagreed. According to Justice Robie: ” The Rules of Civil Procedure Do Apply in Family Law.” Justice Robie observed “Section 210 of the Family Code provides that ” except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally. apply to, and constitute the rules of practice and procedure in, proceedings under this code.” (See also Cal. Rules of Court, rule 5.2(d); Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354 [“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., § 2016.010 et seq.). Accordingly, the provisions of the Civil Discovery Act — including those provisions that govern the time for completion of discovery (Code Civ. Proc., § 2024.010 et seq.) — apply to such