California Statutory Criteria For Determination of Custody Disputes

CIVIL DISCOVERY ACT DOES APPLY TO FAMILY LAW CASES!

Often, Family Law forget that they are practicing civil litigation.  Both statutory and case law have made it abundantly clear, the Civil Discovery Act fully applies to divorce and paternity actions.  Family Law attorneys often have no idea how to use the CCP.  You would be shocked to find some Family Law attorneys, who call themselves experts in the area, don't even know what a Separate Statement is.  Good luck if you find yourself represented by someone like this.  That being said, lets talk about the formal discovery tools.  One such tool is the INTERROGATORY, AKA a question posed to a party. 

Code of Civ. Proc. §2030.220 provides as follows, 

“(a) Each answer in a response to interrogatories shall be as completeand straightforward as the information reasonably available … (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

(c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.” [Emphasis Added]

The Civil Discovery Act requires a party to make good faith effort to obtain the information sought in a formal discovery demand. Regency Health Services, Inc. v. Superior Court(1998) 64 CA4th1496.  “A party cannot plead ignorance to information which can be obtained from sources under his control.” Deyo v. Kilbourne (1978) 84 CA3d 771,782.

        Moreover, case law has made it clear that the misuse the discovery process includes failing to respond or submit to authorized discovery, providing evasivediscovery responses, and failing to meet and confer in good faith to resolve a discovery dispute. Specifically, Clement v. Alegre(2009) 177 Cal.App.4th 1277 states: 

“Misuse of the discovery process includes failing to respond or submit to authorized discovery, providing evasive discovery responses, disobeying a court order to provide discovery, unsuccessfully making or opposing discovery motions without substantial justification, and failing to meet and confer in good faith to resolve a discovery dispute when required by statute to do so.’”Clement v. Alegre(2009) 177 Cal.App.4th 1277, 1285. [Emphasis added.]

In Liberty Mutual Fire Ins. Co. V. LcL Administrators, Inc. (2008) Cal. App.4th 1093, 1102-1103, the Court of Appeals provided the legal the standard to be utilized in determining whether a response is or is not evasive. Specifically, the court opined as follows,  

“In any event, the trial court did not abuse its discretion in concluding that LcL was being “evasive” when it tendered discovery responses that submitted no meaningful information and claimed throughout that information will be “developed” by “future discovery,” especially where the case had been active  for 16 months, LcL repeatedly ignored meet and confer letters, continued to parrot the same answers after two orders compelling it to give further responses, and propounded no discovery of its own until faced with a motion for terminating sanctions.” Liberty Mutual Fire Ins. Co. V. LcL Administrators, Inc. (2008) Cal. App.4th 1093, 1102-1103. [Emphasis added.