Discovery Act and 527.6

A few Court of Appeals opinions remark at the lack of any authority settling whether discovery is available for a 527.6 proceeding. Dicta of some DCA "published" opinions explain that, due to speedy nature of most 527.6 hearings, discovery is usually not practical, but none found declare discovery is not available by matter of law.  An unpublished opinion refers to extensive discovery occurring during a 527.6 case and resulting discovery costs being awarded to the prevailing defendant of Waters v. Munoz.
From the following chain of logic from the top of The Code of Civil Procedure, we  arrived at:
Theory:  All civil causes seeking remedy of any type are subject to discovery unless explicitly denied in some uncharted part of the law.
Level 1 Corollary: All actions and special proceedings are subject to discovery (unless explicitly denied.)
Level 2 Corollary: 527.6 is subject to Discovery.  ( no explicit denial is found )
What else other than a remedy does CCCP provide?  Nothing we find.  So the first node of this logical chain is Part One of the code.


Section 20. "Judicial remedies are such as are administered by the Courts of justice, or by judicial officers empowered for that purpose by the Constitution and statutes of this State."
Section 21. "These remedies are divided into two classes:
1. Actions; and, 
2. Special proceedings."
Section 22. "An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense."
Section 23. "Every other remedy is a special proceeding"
CCCP PART 2

											
											
											
											
											
											
											
											
											
											
											
											
											
											


											
											
											
											
											
											
											
											
											
											
											
											
											
											

											
											
											
											
											
											
											
											
											
											
											
											
											
											
Section 525. "An injunction is a writ or order requiring a person to refrain from a particular act. It may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court."

											
											
											
											
											
											
											
											
											
											
											
											
											
											


											
											
											
											
											
											
											
											
											
											
											
											
											
											

											
											
											
											
											
											
											
											
											
											
											
											
											
											
Section 527.6 refers several times (i), (l) (p) to "any action pursuant to this section" 

											
											
											
											
											
											
											
											
											
											
											
											
											
											


											
											
											
											
											
											
											
											
											
											
											
											
											
											

											
											
											
											
											
											
											
											
											
											
											
											
											
											
527.6 is in TITLE 7. OTHER PROVISIONAL REMEDIES IN CIVIL ACTIONS

											
											
											
											
											
											
											
											
											
											
											
											
											
											

											
											
											
											
											
											
											
											
											
											
											
											
											
											
Title 7 is in PART 2. OF CIVIL ACTIONS

											
											
											
											
											
											
											
											
											
											
											
											
											
											
Part 2 is a part of the Code of Civil Procedure

So it is established that 527.6 is a type of remedy, and that it is either an action or a special proceeding, or 527.6 requests  are corollary to some action or special proceeding.  Fortunately, the Discovery Act applies no matter what type of remedy is 527.6.
But no place has 527.6 declared what is the action or proceeding that is being brought into the court.  When an action is ambiguous, I question whether the judge has jurisdiction.
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TITLE 4. CIVIL DISCOVERY ACT
Section 2016.20

											
											
											
											
											
											
											
											
											
											
											
											
											
											     As used in this article:

											
											
											
											
											
											
											
											
											
											
											
											
											
											   (a) "Action" includes a civil action and a special proceeding of a

											
											
											
											
											
											
											
											
											
											
											
											
											
											
civil nature."

											
											
So, the Discovery Act just lumps everything together and calls them "actions". Then it tells us that discovery is available for a pending action.

											
Section 2017.010. Unless otherwise limited by order of the court in accordance with this title, 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, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.

											
											
											
											
											
											
											
											
											
											
											
											
											
											
Conclusion:  As long as an action/special proceeding continues long enough for the timing requirements of the Discovery Act to be met, then that action is subject to discovery.

											
											
											
											
											
											
											
											
											
											
											
											
											
											
(We have not yet looked in the Discovery Act for a section that requires Discovery to cease after an action terminates.  If none exists, perhaps there is post-trial discovery.)

											
											
											
											
											
											
											
											
											
											
											
											
											
											

											
											
											
											
											
											
											
											
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Case law about Discovery and 527.6

											
											
											
											
											
											
											
											
											

											
											

											
											
											
											
											
Several unpublished opinions exist which state or imply that Discovery Act procedures are not available for 527.6 hearings and cite passages from a few "published" opinions to support their faulty opinions.  By analogy, in the past, it was similarly mis-stakenly thought by some that the anti-SLAPP procedure (CCCP 425.16) was not available to 527.6 litigation.  Citable case Thomas v. Quintero stated a chain of reasoning and logic which establishes that a 425.16 procedure may be used for defense of 527.6 complaints.  A brief to support Discovery for 527.6 hearing might adapt the reasoning and logic of Thomas.

											
											
											
											
											
											
											
											

											
											
											

											
											
											
											
											
Estrada v. DELHI COMMUNITY CENTER is particular intellectually sloppy mis-construing and mis-stating the "published" opinions of Thomas v. Quintero, and  Byers v. Cathcart  as "there is no right to conduct discovery in a proceeding under section 527.6"    However, neither Thomas nor Byers declare that discovery is not available for a 527.6 hearing.  Instead they re-enforce the practice that 527.6 hearings occur so quickly that Discovery usually can not be completed.

											
											
											
											
											
											
											
And that begs the question of whether the 527.6 procedure provides due process guaranteed by the Fifth Amendment.  Such a discussion would widen to inquire why 527.6 authorizes attorney's fees but bars recovery for malicious prosecution, trumps Second Amendment right to firearms without showing evidence of a propensity to use firearms, and casts highly prejudicial false light upon defendant with other restrictions (barring sexual molestation for instance) for which no testimony is introduced which indicates a likelihood of such conduct to occur.

											
											
											
											
											
											
											
											

											
											
											
											
											
											
											
											

											
											
											
											
											
											
											
											Presently, we consider just some case law which considers whether  Discovery Act proceedings are available for 527.6 hearings.  (Another study posits that Discovery Act procedures are available for civil remedies, and that 527.6 is one of the civil remedies, with the suggestion that Discovery is therefore available for 527.6 proceedings.)

											
											

											
											
											
											
											
											
Thomas footnote 11 said,

											
											
											
											
											
											
											
											
											

											
											
											
											

											
											
											
											
											
FN11. There is no provision under section 527.6 allowing for discovery, and in any case, under the civil harassment scheme there is insufficient time in which to conduct discovery. (See generally Byers v. Cathcart, supra, 57 Cal.App.4th at p. 811; Diamond View Limited v. Herz, supra, 180 Cal.App.3d 612, 619-620, fn. 8.) Section 527.6, subdivision (d) requires the trial court to "receive any testimony that is relevant" at the hearing. The court in Schraer commented in a footnote that this could be in the form of oral or written testimony, including affidavits, declarations or deposition. (Schraer v. Berkeley Property Owners' Assn., supra, 207 Cal.App.3d at p. 733, fn. 6.) This statement is mystifying inasmuch as no case holds that discovery is allowed under section 527.6, and the general testimonial statute allowing for testimony in the form of affidavits, deposition, or oral testimony was earlier found by the Schraer court to be inapplicable to section 527.6 proceedings. (Id. at p. 731.)

											
											
											
											
											
											
											
											
											
What the heck is the mystery that there is no case law that affirms discovery is available? Case law comes after statutes! Some statutes are clear enough that no one needs to create case law about them, so the lack of case law says nothing about what is the law.  Furthermore, the civil harassment statute is a relatively new and a platypus of a law. There is not much case law about it at all.

											
											
											
											
											
											
											
											
											

											

											
											
											
											
											
											
											
											
Byers, page 811 said:

											
											
											
											
											
											
											
											
											
"If this matter had been handled according to normal injunctive procedures, plaintiff would have had ample time to develop evidence and prepare her case, and would not have had to defend her use of the easement on 24 hours' notice."

											
											
											
											
											
											
											
											
											
Precisely.  When the civil harassment hearings are continued, there is time for procedures of the DIscovery Act to complete.

											
											
											
											
											
											
											
											
											
Neither Thomas not Byers say that Discovery is barred from a 527.6 proceeding

											
											
											
											
											
											
											
											
											
Thomas correctly quotes the Schraer footnote, however, Thomas later takes its turn at misquoting Schraer's page 731.  We examine the correct quote first, then the misquote.

											
											
											
											
											
											
											
											
											
Schraer page 733, footnote 6 said:

											
											
											
											
											
											
											
											
											

											
											
											
											

											
											
											
											
											
"[6] We do not hold, nor do we mean to imply, that every proceeding for an injunction under Code of Civil Procedure section 527.6, subdivision (d), must in all instances proceed with oral testimony instead of upon affidavits or declarations, regardless of the circumstances. Certainly, a full-fledged evidentiary hearing with oral testimony from all sides may not be necessary in all cases. (Cf. Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 524 [67 Cal. Rptr. 761, 439 P.2d 889]; E.H. Renzel Co. v. Warehousemen's Union (1940) 16 Cal.2d 369, 370-371 [106 P.2d 1]; City and County of San Francisco v. Evankovich (1977) 69 Cal. App.3d 41, 55 [137 Cal. Rptr. 883]; 6 Witkin, Cal. Procedure (3d ed. 1985) Provisional Remedies, § 309, at pp. 262-263.) We do hold, under the express language of the statute and in accordance with the requirements of due process, that the trial court in a harassment proceeding may not arbitrarily limit the evidence presented to written testimony only, when relevant oral testimony is offered. Both sides may offer evidence by deposition, affidavit, or oral testimony, and the court shall receive such evidence, subject only to such reasonable limitations as are necessary to conserve the expeditious nature of the harassment procedure set forth by Code of Civil Procedure section 527.6."

											
											
											
											
											
											
											
											
											
So, Thomas properly quoted the footnoote 6 of Schraer.

											
											
											
											
											
											
											
											
											
Now we examine the Thomas misquote of the body page 731 of Schraer.  Thomas does not explain to what part of page 731 it refers.  The reader may disagree with our finding, but we present the only sentence from page 731 we suspect Thomas was citing from Schraer:

											
											
											
											
											
											
											
											
											

											
											
											
											

											
											
											
											
											
"Code of Civil Procedure section 2002 cannot be used to read into every other statutory use of the word "testimony" a license to use affidavits or deposition transcripts for all the same purposes as oral examination; such a statutory reading would conflict with constitutional and statutory rights to confront and cross-examine witnesses in both criminal and noncriminal proceedings. (Goldberg v. Kelly (1969) 397 U.S. 254, 259 [25 L.Ed.2d 287, 294, 90 S.Ct. 1011]; August v. Department of Motor Vehicles (1968) 264 Cal. App.2d 52, 60-64 [70 Cal. Rptr. 172]; McCarthy v. Mobile Cranes, Inc. (1962) 199 Cal. App.2d 500, 506-510 [18 Cal. Rptr. 750].)"

											
											
											
											
											
											
											
											
											
In contrast to what Thomas asserts, Schraer does NOT say here that CCP 2002 does not apply to 527.6 hearings, quite the opposite.  Schraer tells us how to properly apply CCP 2002 to 527.6, and other proceedings as well.  Here, Schraer merely makes clear that depositions and affidavits may not displace oral examination when the defendant has demanded oral testimony be taken.  It is important to note the caution of constitutional infringement should oral testimony be denied in favor of other types of testimony.  While Schraer did not step beyond the threshold, Schraer thusly opens a door to challenge denial of any of the types of testimony in favor of others.  If offered oral testimony must be heard, why not deposition testimony? [Deposition are a type of Discovery.]

											
											
											
											
											
											
											
											
											


											
											
											
											
											
											
											
											
											

											
											
											
											
											
											
											
											
											
Someone at the Judicial Council of California may agree.  The 2010 Judicial Council's Benchguide, Civil Harassment Section 20.16 Evidence, says, "Both sides may offer evidence by deposition, affidavit, or oral testimony, and the court must receive this evidence subject to the expeditious nature of the harassment procedure"

Nothing contained herein is tendered as nor should it be considered as legal advice.  What is legal is not necessarily justice.  Almost all of reality is non-"published", ergo, what is legally affirmed is always a retarded misrepresentation of reality.   Use at your own risk!