Family Code Section 6309: Key points, practice tips and resources
The California Legislature recently enacted Family Code Section 6309, under the Domestic Violence Prevention Act (DVPA).
After declaring DV is an “urgent public safety and public health crisis,” citing statistics and studies, the legislature enacted Family Code Section 63091 to remedy what it described as “litigation abuse.” The legislature reasoned that domestic violence survivors who seek protection often face ongoing abuse in the form of litigation abuse.
It defined “litigation abuse as the use of legal or bureaucratic procedures by abusive partners to continue to attack, harass, intimidate, coercively control, or maintain contact with their former partners through the litigation system” [FC § 6309(a)] and concluded that “this can lead to severe consequences for survivors, including economic hardship and psychological harm.”
Section 6309 introduces the concept of pre-hearing discovery to streamline any domestic violence restraining order discovery, “intended to expedite the adjudication of requests for restraining orders and prevent abusive litigation tactics.”
To put it mildly, there are concerns about the potential for revictimization through discovery abuse, while others believe that Section 6309 protects against such risks. The law aims to strike a balance between preventing litigation abuse and ensuring each party has the necessary information for their case.
Family Code Section 6309(c)(1) provides that the court may grant a request for discovery only upon a showing of good cause. The court’s interpretation and application of the “good cause” requirement is the obvious point of contention and potential legal challenge. Section 6309 requires the court to consider several factors, including the importance and relevance of the information sought, the likelihood of obtaining the information through other methods, the potential delay in the hearing, and the potential for inducing trauma.
Key points of Family Code § 6309:
1. Limited civil discovery is permissible in DVPA proceedings. [FC § 6309(e) & (f)]
2. Discovery is not “of right” but may be permitted “only for good cause shown.”2
3. A party may seek such discovery at the evidentiary hearing, but not before, and can be requested orally or in writing.3
4. The court has vast discretion whether to permit such discovery and the terms and conditions under which it may be pursued.4
5. Nothing in Section 6309 precludes or inhibits counsel from meeting and conferring in advance of the hearing about discovery nor to agreeing to permit such discovery.
6. Among the tools available to the court is to start the hearing, receive a portion of the evidence (e.g., the Petitioner’s case in chief) and then suspend the hearing for a short duration to permit appropriate discovery.5
7. If granted, the discovery is limited to the “least intrusive methods and the minimum number of items reasonably necessary to secure the requested information.”6
8. The abuse survivor (the language used in the code) is entitled to a copy of the police report.7
Types of Discovery that May be Permitted by the Court:
1. Interrogatories: In the context of a domestic violence case, interrogatories are likely to ask the respondent to list all instances of alleged abuse or to explain their relationship with the petitioner.
2. Requests for Admission: The requestor might ask the respondent to admit that they sent threatening text messages on a specific date.
3. Requests for Production of Documents: In a domestic violence case, this could include medical records, police reports, or text message histories.
4. Depositions: One party may depose the other to gather more information about the alleged abuse.
5. Financial Discovery: Reminder, if support is requested as part of the DVPA action, limited financial discovery is already required (the FL-150 and requisite attachments).
Remember, the stated goal of prehearing discovery under FC § 6309 is to expedite the adjudication of requests for restraining orders and prevent abusive litigation tactics.
Tips and Strategies:
1. Meet and confer regarding discovery!
2. Prepare a detailed and concise discovery plan/opposition—individualized and fact specific that includes an offer of proof supporting the request.
3. Attach proposed, customized discovery that is precise and targeted – do not use boilerplate forms or language.
4. If a deposition is sought, explain why written discovery requests are insufficient and outline the areas of inquiry, proposing the least intrusive means (e.g., virtual forum, time limit).
5. Articulate how you will minimize the delay needed to obtain the discovery.
California DVPA Resources:
1. Judges Guide to Domestic Violence Restraining Orders (2023)8 This guide provides a comprehensive overview of restraining orders, including those under the DVPA. It covers everything from the definition of abuse to jurisdiction and venue considerations.
2. Case-Annotated Compendium of California Domestic Violence Laws (2023)9 This compendium provides an annually updated list of about 600 DV-related laws in California, including case annotations.
3. Judge Lawrence P. Riff, Los Angeles County Superior Court, A New DVRO Law Allows Limited Civil Discovery but with Careful Checks and Balances (2024) Daily Journal10 This article provides a comprehensive discussion on the practical aspects of Family Code Section 6309.
Setting aside the debate regarding the intent versus the result of this legislation, it is here and we are bound to implement our best practices. Let’s do so!
1. https://casetext.com/statute/california-codes/california-family-code/division-10-prevention-of-domestic-violence/part-4-protective-orders-and-other-domestic-violence-prevention-orders/chapter-1-general-provisions/section-6309-domestic-violence-restraining-orders-prehearing-discovery
2. [FC § 6309 (c)(1)]
3. [FC § 6309(c)]
4. [FC § 6309(d)]
5. [FC § 6309(e)]
6. [FC § 6309(f)]
7. [FC § 6309(g)]
8. https://www.courts.ca.gov/documents/DVRO-benchguide.pdf
9. https://fvaplaw.org/wp-content/uploads/2023/09/2023-Case-Annotated-Final-1.pdf
10. https://www.dailyjournal.com/articles/376516-a-new-dvro-law-allows-limited-civil-discovery-but-with-careful-checks-and-balances
Hon. Anita Santos (Ret.) joined ADR Services, Inc. as a neutral after 10 years in the judiciary as a Commissioner, then Judge in Contra Costa County, presiding over diverse family law cases including domestic violence matters. Prior to her elevation, she was a sole practitioner in an active and successful family law practice. Case Manager: katyteam@adrservices.com