August 2013 - Discovery With a Self-Representing Party

by Commissioner Richard G. Vogl

As more and more litigants in the family courts are making the decision to represent themselves, it becomes more and more likely that the practicing attorney will encounter the situation of seeking discovery against a self-representing party. Are there pitfalls? Are there lifesavers?
The April 2013 reported case of In re Marriage of Kahn is not uncommon. See In re Marriage of Kahn, 215 Cal. App. 4th 1113 (2013).
In that case, Mr. Kahn was the self-representing party in a marriage of almost fifty years. During the course of the litigation, however, he hired and fired three lawyers.
The first discovery propounded by the wife’s counsel was a set of simple “form” interrogatories and a request for production of documents. After he received the discovery request, Mr. Kahn hired a lawyer, but each of them “wholly failed to respond.” About ninety days after sending the discovery request, the wife’s counsel filed a motion to compel. After that matter was filed, but before the hearing date, Mr. Kahn released his first counsel. Still, no responses were filed.
About a month after the motion to compel was filed, the court granted the motion and ordered Mr. Kahn to respond within thirty days. The order did not specifically say that any responses could not be “objections.” Nonetheless, Mr. Kahn did nothing.
Eight months from the initial request for discovery, and three and a half months after the court ordered the responses, the wife’s attorney filed a motion to strike Mr. Kahn’s pleadings as a discovery sanction. Two weeks later and three days before the court hearing, Mr. Kahn hired a lawyer. At the hearing, a representation was made to the court that answers would be forthcoming. The court appointed a receiver. Mr. Kahn never provided anything to the receiver.
Mr. Kahn hired the third lawyer, and a full year after the first request for discovery was filed, he filed responses, but his attorney did not sign them. In addition to some “answers,” Mr. Kahn filed objections.

Termination Sanctions
The court found that termination sanctions were justified and that monetary sanctions could also be levied. The court relied upon California Code of Civil Procedure sections 2030.290 and 2023.030. Although such sanctions are to be used “sparingly,” the court found that Mr. Kahn’s actions justified the relief sought. As the court said, it took him a year to file anything: “He simply blew off the discovery process.” A default against Mr. Kahn was granted.
Mr. Kahn filed a motion to set aside the default and it was denied. He appealed.

He Did File Responses
In rebuttal of Mr. Kahn’s argument that the motion for termination sanctions should have been denied as he had, indeed, filed answers, the court pointed out that responses which include objections must be signed by an attorney (Code of Civil Procedure § 2030.250) and at no time did any attorney ever sign the responses filed.
Interestingly, the court seems to suggest that had the responses been appropriately signed by counsel, then the burden would have shifted to the wife’s counsel to file another motion arguing that the responses were insufficient and inadequate.
The court also said, however, that even assuming the responses were valid, the motion was one for sanctions, and not a motion to compel. Mr. Kahn had missed the deadline date set by the court.

No Right to Objections
The court further pointed out that Mr. Kahn had no right to raise any objections. Code of Civil Procedure section 2030.290 indicates that if a party has failed to serve a timely response, then that party waives any objection, including one based on privilege.

Fifth Amendment Claim
Part of his objections were raised under the Fifth Amendment to the U.S. Constitution, but the court had no difficulty dispensing with the argument. Mr. Kahn had been asked about corporate and partnership business records. Quoting Bellis v. United States, 417 U.S. 85 (1974), the court said that an individual cannot rely upon the privilege to avoid producing the records of a collective entity which are in his possession in a representative capacity even if those records might incriminate him personally.

Anything Unusual?
 It would seem that nothing new is added to our arsenal of discovery by this case, except to remind us that discovery applies when a party is self-representing. In re Marriage of Michaely, 150 Cal. App. 4th 802, 809 (2007) says:

A trial court has broad powers to enforce its discovery orders, and may impose sanctions that are suitable and necessary to enable the party seeking discovery to obtain the objects of the discovery sought. Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns, 7 Cal. App. 4th 27, 35 (1992). “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.” Karlsson v. Ford Motor Co., 140 Cal. App. 4th 1202, 1214 (2006). “The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action.” Calvert Fire Ins. Co. v. Cropper, 141 Cal. App. 3d 901, 904 (1983).

Remember Feldman
Although Feldman was not a case involving a self-representing party, it is good to remember the basic rule, stated as follows:

Consistent with fiduciary obligations, § 2100, subdivision (c) provides that “a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties.”

In re Marriage of Feldman, 153 Cal. App. 4th 1470, 1476 (2007). This disclosure duty is ongoing, as section 2100 provides that:

[E]ach party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts.

Id. (citation omitted).

The more folks think they can be their own lawyers in court, the more the licensed attorney will have to deal with these “pro pers.” That doesn’t mean, however, that any special treatment should be given. When violations of the discovery rules occur, the attorney should take quick action to file a motion seeking both monetary sanctions as well as termination sanctions. The fact that  parties may be representing themselves does not change their burden of knowing state law. Courts hold them to the same standards as an attorney. City of Los Angeles v. Glair, 153 Cal. App. 4th 813, 819 (2007); Gamet v. Blanchard, 91 Cal. App. 4th 1276, 1284-85 (2001). Litigants must follow correct rules of procedure. See Nwosu v. Uba, 122 Cal. App. 4th 1229, 1247 (2004).

Commissioner Richard G. Vogl (Ret.) served on the family law panel of the Superior Court for twenty-six years and now accepts matters as a privately compensated temporary judge. He can be reached at richvogl@gmail.com