Family Law Discovery and Contempt: Motion to Compel

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.

Sample language for Notice of Motion to Compel Further Responses

Sample language for Declaration in Support of Motion to Compel and Meet & Confer Statement

Above, you will find a few modifiable sample templates for the Declaration, (adapted from the book How to Manage a Contested Divorce in California and CEB Family Law Financial Discovery. 

If you would like to conduct more research and/or further modify the Declaration template, please see:

• Handling Motions to Compel and Other Discovery Motions (call number KFC1020.Z9 T53), Appendix A-D
• California Forms of Pleading and Practice (call number KFC1010.A65 C3), Ch. 195, Sections 195.65 to 195.69

• And more resources on the Resources tab

Sample Language for Separate Statement Pursuant to Rules of Court 3.1345 (only if answers were inadequate)

Sample Language for Points and Authorities in Support of a Motion to Compel

There are two basic samples provided above. We recommend that you do further research in the following materials to help modify the samples to better fit your particular situation, see:

• California Law and Motion Model Forms, call number KFC1012 .P37 Forms
  • Compel Compliance with Deposition Subpoena, Ch. 63
  • Compel Production of Documents, Ch. 64
  • Compel Response to Interrogatories, Ch. 67-68
  • Compel Response to Inspection Demands, Ch. 69-71
  • Compel Response to Request for Admissions, Ch. 73
• California Points and Authorities, call number KFC1010 .B4
  • Compel Response to Interrogatories, Section 84.10 et seq.
  • Compel Production or Inspection, Section 85.10 et seq.
  • Compel Response to Request for Admissions, Section 86.10 et seq.

Remember that the Points and Authorities should be on pleading paper, you can find the pleading paper template here. 

Filing and Service of Motion to Compel

1. Contact the Family Law Business Office to schedule a date and time for the Motion to Compel hearing. The hearing date must be scheduled at least 15 court days before the date initially set for trial (CCP §2024.020(a)). See this link for contact information for the San Diego Superior Court Family Law Business Office.
2. All paperwork must be filed with the Court and served on the other party at least 16 court days before the hearing on the Motion to Compel (CCP §1005(b)). If serving by mail within California, the time for service is increased by 5 calendar days (CCP §1005(b)).
3. You cannot serve the documents. They must be served by someone that is not a party to the case and over 18 years of age. They must sign a proof of service form stating what they have served, who it was served on, and when it was served. The person performing the service must sign a proof of service form stating what they served, who it was served on, and the date of the service. Proof of personal service forms can be found here, and proof of service by mail forms can be found here. For more information about service, see San Diego Law Library's guide entitled Service of Notice and Other Papers. 
4. The proof of service must be filed no later than five court days before the time for the hearing (Cal. Rule of Court 3.1300(c)). 
5. Keep a copy of all documents filed with the court for your own records.

Relevant Authority

There are different statutory requirements for the different forms of discovery, therefore, there are different statutes governing motions to compel depending on the type of discovery involved. See the following code sections for more information about motions to compel: CCP §2025.450 (attendance at a deposition); CCP §2025.480 (deponent who fails to answer questions or produce documents); CCP §2030.290 and §2030.300 (interrogatories); CCP §2031.310 and §2031.320 (inspection demand); CCP §2033.280 and §2033.290 (request for admissions). 

At the law library you can find resources to assist you in drafting a response to a motion to compel discovery. One of those resources is Opposing California Civil Motions: Model Opposition Briefs, which is available in print at the library and in Westlaw. In Chapter 6 of that title you will find sample briefs for opposing several types of discovery motions, including sample responses for:

• Motion to Compel Discovery
• Motion to Compel Discovery (opposition based on violation of privacy)
• Motion to Compel Further Responses to Interrogatories
• Motion to Compel Attendance at a Deposition