Family Law Discovery and Contempt: Motion to Compel

How to File a Motion to Compel Compliance with Discovery Requests

What is a Motion to Compel?

If a party fails to answer a question, attend a deposition hearing, or fails to bring a document or tangible thing requested in a deposition notice or subpoena, then the party seeking the discovery may request the court for an order to compel an answer or to compel the production of a document or object.

A motion to compel is a request to the court to issue an order to compel the other party to answer a question or to produce a document or object.

Timing of Motion to Compel

Timing is critical and different for various types of discovery and depends on if a response is served. If no responses at all are served, there is no time limit on when the propounding party may file a motion to compel responses (CCP §2030.290(b)-(c)). However, CCP §2024.020(a) states that discovery motions must be heard at least 15 days before the date initially set for trial.

If a response is served, you must have the notice of motion to compel further responses served within 45 days after service of the verified response or on or before any later date to which the parties have agreed in writing (CCP §2031.310(c)). The 45-day period is extended as provided for in CCP §1010.6(a)(3)(B) and CCP §1013 when service of the verified response is made by a method other than personal delivery. If you fail to give notice of the motion within the 45-day period, you waive any right to a further response (CCP §2031.310(c)). See CEB California Civil Discovery Practice, §8.95 d.Timing for Motion to Compel Further Response and §15.40 1.Deadline for Filing Motion to Compel, for specific information.

Timing to Compel for Demand for Production:

A motion to compel further response to a demand for production under CCP §2031.310(c) is untimely when the motion is made more than 45 days after service of the response, even when the motion is brought less than 45 days after the date set for production. See CEB California Civil Discovery Practice, §8.95 d. Timing for Motion to Compel Further Response and §15.40 1.Deadline for Filing Motion to Compel, for specific information.

You Must Try to Resolve the Issue Prior to Filing a Motion

Before filing a motion to compel, reasonable and good faith efforts must be made to resolve the issues with the discovery request. This includes contacting the opposing party by phone, by letter, or in person to try to get a response to the discovery request. This is a mandatory requirement that must be met before a motion to compel can be filed.

How to File the Motion

If, after all reasonable attempts have been made to resolve the discovery dispute and there is still no resolution, then the party seeking the discovery may file a motion to compel a response to the discovery request. There is no court form for this motion, it must be drafted in a pleading paper format.

A motion to compel includes the following documents (a motion contains several parts):

  1. Notice of Motion
  2. Declaration supporting the Motion to Compel and a Meet and Confer statement - state facts supporting your motion to compel and showing you made a good faith and reasonable effort to resolve your discovery issue with the opposing party. This is a mandatory requirement (see CCP §2016.040).
  3. Separate Statement pursuant to Rules of Court 3.1345 (if answers were inadequate)
  4. Memorandum of Points and Authorities - state facts showing good cause to justify the discovery request and citations to the law.
  5. Proof of Service (see our Guide on Service of Notice & Other Papers for guidance and forms)

Note: An additional separate statement is prepared for the following motions when a response to a discovery request is made, but it is inadequate (Cal. Rule of Court 3.1345(c)):

  1. To compel further responses to requests for admission;
  2. To compel further responses to interrogatories;
  3. To compel further responses to a demand for inspection of documents or tangible things;
  4. To compel answers at a deposition;
  5. To compel or to quash the production of documents or tangible things at a deposition;
  6. For medical examination over objection; and
  7. For issue or evidentiary sanctions.

See SAMPLE Separate Statement below.