Hon. Jack Komar
161 No. First St.
San Jose CA  95113

Re: Discovery problems in family court

Dear Judge Komar:

Enclosed are copies of two petitions for writ of mandate filed with the Court of Appeal yesterday. Both concern the stoppage of discovery in family court which is accomplished by a pair of void local rules which are in conflict with state law.

Under the Discovery Act a party has an absolute right to do discovery up to 30 days before trial per Code of Civil Procedure § 2017: Unless otherwise limited by order of the court in accordance with this article, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, . . .

In Wagner v. Superior Court of Orange County (1993) 12 Cal.App.4th 1314, the Superior Court attempted to cut off discovery earlier than 30 days before trial and to use a local rule to justify that stopping of the discovery process.  The Court of Appeal issued a peremptory writ of mandate so that the litigant could exercise their statutory right to discovery.  But that's not how it works in Family Court.

The beginning point for any discovery of expert witnesses is for the litigant to obtain a complete copy of their FCS file.  This is because of the great weight that judges give to the FCS expert; everyone knows that other opinions basically don't count. Local Rule 3.1.2.3.5 forbids discovery of a Family Court Services file until "after all efforts of settlement are exhausted, the case is set for a hearing or trial and/or there is an order by the Court to release the information." Although the rule itself is of dubious validity, local Superior Court judges have in some cases greatly expanded this rule to forbid all discovery of experts until the time stated in the local rule.  Because Santa Clara County Local Rule 3.1 also requires a long series of conferences which a custody/visitation litigant must attend, discovery can easily be delayed for 12-18 months!

After that huge delay, Local Rule 3.1.2.3.4 requires that after the last Early [sic] Resolution Conference a trial should be set within 60 days unless a longer time is necessary for discovery.  Because the family court judges in the past have not enforced the discovery law, stonewalling has become endemic. So 60 days is never enough for discovery.

But the litigant does not have 60 days to do discovery. Under CCP section 2024 discovery must be completed 30 days before trial.

The net result of these sections is that all discovery in a family law case is stopped for 12-18 months, and then the litigant has 30 days to obtain all discovery in an atmosphere where stonewalling has become the rule, not the exception.

If the litigant tries to obtain discovery before the last ERC it is too early.  If the litigant cannot obtain all discovery in the tiny 30-day window permitted, then they must postpone the trial.  In practice trials are set out a little father, so the litigant may have 60-120 days to do discovery, but that is still impossible and means the trial must always be postponed to get discovery.

But Family Code section 3023 provides: (a) If custody of a minor child is the sole contested issue, the case shall be given preference over other civil cases, except matters to which special precedence may be given by law, for assigning a trial date and shall be given an early hearing.

Ironically, discovery is stopped ONLY in custody cases, not in property or support cases.  The result is that it is only litigants in custody cases who are forced to choose between discovery and a prompt trial.  To get discovery, a custody litigant must always postpone the trial.  This is completely contrary to the statutory preference.

I realize that it is said that the commission you put in place will be making a recommendation around the end of the year.  But this matter needs to be addressed right now.  There is a void local rule, and it should be removed. There are going to be writs and appeals, and hopefully the family court judges will enforce the state Discovery Act and not the conflicting local rule. Government Code section 68070 provides that courts may enact local rules "not inconsistent with law." Where local rules conflict with state law, the local rules are void. Hock v. Superior Court (1990) 221 Cal.App.3d 670; LaBue v. Superior Court (1977) 75 Cal.App.3d 164; Sierra Craft, Inc., v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252; Lokeijak v. City of Irvine (1998, 4th Dist.) 65 Cal. App. 4th 341; Kalivas v. Barry Controls Corp. (1996) 49 Cal. App.4th 1152.

But this is not an abstract letter about the conflict of local and state law. If the state Discovery Act had been applied in family law cases (which it unquestionably must), then possibly we would not be in the situation where gross incompetence of certain psychologists has gone undetected and unproven for so many years. We are talking about children's lives here, about whether they must go home and be beaten or molested.  Not only the parents but the children have an objective interest in making sure that the Discovery Act is applied.

Please do all you can to immediately revoke Local Rule 3.1.2.3.5.  It eventually must go, either by Court of Appeal action, or, preferably by the action of local judges. The rule of law needs to return to Family Court, and it needs to return now.

Yours truly,

ROBIN YEAMANS Attorney at Law

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