Marriage of Blum & Herbstman CA6 ( 2023 )

Filed 08/25/23 Marriage of Blum & Herbstman CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re Marriage of ADAM BLUM and H048887
LAUREN HERBSTMAN. (Santa Clara County
Super. Ct. No. 2005-1-FL-129664)
ADAM BLUM,
ORDER MODIFYING OPINION TO
Appellant, CORRECT CLERICAL ERROR
[NO CHANGE IN JUDGMENT]
v.
LAUREN HERBSTMAN,
Respondent.
On the court’s own motion (Cal. Rules of Court, rule 8.264(c)), it is ordered that the
opinion filed herein on August 15, 2023, be modified as follows:
On page 1, in the first full paragraph which begins with the words “In this family law
proceeding” replace “Lisa” with “Lauren.”
There is no change in the judgment.
___________________________________
Wilson, J.
____________________________ ____________________________________
Grover, Acting P.J. Danner, J.
Filed 8/15/23 Marriage of Blum & Herbstman CA6 (unmodified opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
In re Marriage of ADAM BLUM and H048887
LAUREN HERBSTMAN. (Santa Clara County
Super. Ct. No. 2005-1-FL-129664)
ADAM BLUM,
Appellant,
v.
LAUREN HERBSTMAN,
Respondent.
In this family law proceeding, Adam Blum appeals from the November 10, 2020
order (November 10 order) granting Lisa Herbstman’s motion to compel responses to her
request to produce certain documents related to his finances.
On appeal, Blum raises multiple claims of error, as follows: (1) the November 10
order compels discovery in violation of a protective order issued by the Contra Costa
County Superior Court in a separate proceeding; (2) the trial court lacked jurisdiction to
issue the November 10 order because a prior hearing on child support arrears had
resolved all issues related to the Smith-Ostler1 calculations and no matters were reserved
1
A Smith-Ostler (In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33),
sometimes known as Ostler-Smith, “provision is ‘an additional award, over and above
guideline support, expressed as a fraction or percentage of any discretionary bonus
actually received.’ [Citations.] Its purpose is to capture fluctuations in the supporting
(continued)
or continued; (3) the trial court lacked jurisdiction to enter the November 10 order
because, at the time of the hearing on Herbstman’s discovery requests, there were no
motions pending regarding child support; (4) the trial court lacked jurisdiction to order
discovery because all such matters were stayed due to a pending appeal; (5) even if the
trial court had reserved jurisdiction over Smith-Ostler calculations, child support cannot
be retroactively modified; (6) the trial court employed the wrong legal standard when
ordering the discovery and took no evidence from the parties before issuing the
November 10 order, and (7) the November 10 order was beyond the scope of Blum’s
original motion on child support arrears.
As we explain below, we conclude that none of Blum’s arguments have merit.2
We will affirm the order.
I. FACTUAL AND PROCEDURAL BACKGROUND3
Herbstman and Blum married in April 2004 and their only child was born in July
of that year. They separated in December 2004, and Blum filed for divorce in October
spouse’s income that are not included in a flat rate amount of support.” (In re Marriage
of Minkin (2017) 11 Cal.App.5th 939, 949.)
2
In her responding brief, Herbstman invites the court to consider, on its own
motion, imposing sanctions against Blum pursuant to California Rules of Court, rule
8.276(a). We decline the invitation. Unspecified rule references are to the California
Rules of Court.
3
Herbstman requests that this court take judicial notice of this court’s prior
opinion in Blum v. Herbstman (June 13, 2022, H045460, H046286, H047513 (Blum)
[nonpub. opn.]) on the ground that it is relevant to the issues raised in the instant appeal.
Blum opposes the request, arguing that the trial court was not asked to take judicial notice
of the opinion and that Herbstman has failed to show that the opinion is of “substantial
consequence.” We disagree with Blum and will take judicial notice of our prior opinion.
(Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).) As Blum acknowledges, the prior
opinion, issued on June 13, 2022, did not exist at the time of the November 10, 2020
order that Blum has appealed. Herbstman cannot be faulted for failing to ask the trial
court to take judicial notice of something that did not exist.
2
2005. “Since that time, the parties have been engaged in high conflict litigation
concerning child custody and support.” (Blum, supra, at p. 2.)
Following a child support trial in 2011, Blum was ordered to pay $1,441 in
monthly child support to Herbstman. In January 2015, Herbstman requested an order
modifying Blum’s child support obligations based on claims that Blum had failed to
disclose proceeds from the sale of his company during the 2011 child support trial and
had otherwise misstated his finances.
Herbstman’s child support modification request was tried in September 2017 and
the trial court issued its final statement of decision in August 2018. In that decision, the
court ordered Blum to pay Herbstman $905 in monthly child support (retroactive to the
January 2015 filing of the request to modify) and ordered an annual Ostler-Smith
payment to be paid each year by December 31. The court further ordered that “[a]ny
overpayment of child support from 2015 to present shall be offset by any amount due and
owing under Smith-Ostler.” Herbstman’s appeal from the August 2018 order was
addressed in Blum, supra, at page 7.
In April 2019, Blum requested an order to determine child support arrears and
interest (Blum’s RFO) claiming that he had overpaid Herbstman $24,753 in child support
from January 2015 to September 2018. On August 5, 2019, Herbstman propounded
requests for production of documents (August RPD) on Blum. In the August RPD,
Herbstman requested that Blum produce, among other things, documentation regarding
any account with any financial institution in Blum’s name from August 1, 2017, through
the date of production of documents.
During the August 29, 2019 hearing on Blum’s RFO, after Herbstman, appearing
in propria persona, repeatedly questioned the calculation of Blum’s Smith-Ostler arrears,
the trial court assured her that her “rights to discovery are not impeded in any way. We
are taking [Blum]’s admission as your starting point, and you are free to gather whatever
evidence you have. You're free to conduct whatever discovery you wish and then you
3
will have the opportunity to present whatever evidence you obtain when you believe that
that amount is not correct.” The court later acknowledged that Herbstman disputed the
amount of arrears and again informed Herbstman that she “may again conduct whatever
discovery, obtain whatever evidence, and produce whatever [she] obtain[s] in an
evidentiary hearing, and [the] Court retains jurisdiction over Smith-Ostler.” In the court’s
order following the hearing, the judge handwrote: “This amount is without prejudice for
[Herbstman] to dispute amount and conduct discovery.” Herbstman appealed from this
order. (Blum, supra, at p. 7.)
On October 4, 2019, Herbstman moved to compel discovery on the August RPD,
arguing the requested documents were relevant to establishing the true amount of Blum’s
income for Smith-Ostler purposes. In his opposition, Blum argued that there was no basis
to compel production of documents from him because there was no motion pending
related to child support, and the request was nothing more than a fishing expedition.
Blum also argued that Herbstman failed to establish good cause for the discovery and that
her request was retaliatory.
At the November 9, 2020 hearing on Herbstman’s motion to compel, neither party
testified nor were any documents submitted into evidence.4 In its November 10, 2020
written order (November 10 order) granting Herbstman’s motion, the court found that the
documents Herbstman had requested “pertain[] to [Blum]’s assets and finances, which is
directly relevant to the reserved issue of Smith/Ostler arrears” and directed Blum to
“serve code compliant further responses . . . , without objection, within 20 [] days.”
On November 18, 2020, Blum moved to reconsider, set aside, or have a “new
trial” on Herbstman’s motion to compel.5 In that motion, Blum renewed most of the
4
No reporter was present and thus there is no transcript of the hearing.
5
Prior to filing his opening brief, Blum filed a request to augment the record on
appeal (Cal. Rules of Court, rule 8.155(a)) to include the transcript of the January 14,
2021 hearing on his motion to reconsider. By separate order dated January 14, 2022, we
(continued)
4
arguments he had raised in his original opposition. He also submitted a copy of a
protective order (detailed below in section II.A.1.) as an exhibit and argued that the trial
court abused its discretion by ordering the parties to “violate” that order.
On January 21, 2021, the trial court issued a written order denying Blum’s motion
in its entirety.6 Addressing the protective order, the court noted that it “only places
restrictions on the parties’ ability to obtain and use discovery in the Contra Costa County
case; it does not restrict their ability to propound discovery in the family case.”
Blum timely appealed.
II. DISCUSSION
A. The 2017 protective order does not impact trial court’s jurisdiction
1. Additional background
In August 2017, Blum learned that Herbstman, in a separate malpractice action
against her former attorney in Contra Costa County Superior Court (Herbstman v. Carter,
2015, No. C-15-01104) (hereafter the malpractice action), had subpoenaed certain
financial institutions seeking Blum’s personal financial information. Blum applied ex
parte for a protective order in the malpractice action. On October 4, 2017, the Contra
Costa County Superior Court issued a stipulated protective order (the 2017 protective
order) in which the parties agreed “that CONFIDENTIAL INFORMATION under this
order shall pertain to all documents in the name of Adam S. Blum” and further agreed
“that CONFIDENTIAL INFORMATION shall not be used in the Santa Clara County
deferred ruling on the request to augment for consideration with the appeal. We now
grant the request to augment the record to include the transcript of the January 14, 2021
hearing.
6
Blum does not specifically challenge this order in his briefing. The entirety of
his arguments focus on the November 10 order.
5
Family Law Action, Case No. 105FL129664.”7 The 2017 protective order also provided
that its provisions restricting the communication or use of confidential information “shall
continue to be binding after the conclusion of this action, unless otherwise agreed or
ordered.”
As discussed above, Herbstman served a request for production of documents on
Blum in August 2019, prior to the hearing on child support arrearages. Blum served
responses to those requests on August 22, 2019 and supplemental responses on October
1, 2019, but in neither of those responses did Blum identify the 2017 protective order as a
basis for withholding documents. After Herbstman moved to compel further responses to
her discovery request, Blum’s opposition again failed to raise the 2017 protective order as
a reason why the motion should not be granted, nor did he raise it at the November 9
hearing on the motion. Blum first mentioned the 2017 protective order in his motion for
reconsideration of the order compelling discovery.
2. Analysis
Before addressing Blum’s arguments regarding the 2017 protective order, we
address Herbstman’s contention that Blum has waived his right to interpose the 2017
protective order. In her view, by failing to raise it as an objection in response to her
discovery requests, in response to her motion to compel, or at the hearing on the motion,
Blum should be deemed to have waived his claim that the 2017 protective order
precludes the trial court from compelling production of financial documents. We do not
agree.
The failure to raise an objection, either prior to entry of judgment or in a motion
for a new trial, results in a waiver of the objection. (In re Marriage of Arceneaux (1990)
7
The underlying Santa Clara County Superior Court case number for Blum and
Herbstman’s family law proceedings is “2005FL129664,” not “105FL129664.” This
appears to be a scrivener’s error and neither party raises it, let alone claims that it has
substantive effect.
6
51 Cal.3d 1130, 1132-1134.) In this case, Blum did raise the 2017 protective order in his
motion to set aside, or reconsider, or for a new trial. As a result, we conclude he has not
waived his right to assert it as a defense.
We now turn to the merits of Blum’s argument that the trial court was precluded
from granting Herbstman’s motion to compel due to the 2017 protective order. We reject
that argument. Herbstman propounded her discovery in order to challenge the calculation
of Blum’s child support obligations under Smith-Ostler.
The California Supreme Court articulated the general rule surrounding child
support stipulations and agreements in Puckett v. Puckett (1943) 21 Cal.2d 833, 839, as
follows: “The parents may contract with each other with respect to the custody and
support of their minor children. [Citations.] But inasmuch as the children’s welfare is
the factor of paramount concern, the children are not bound by the contract, and the law
vests in the court power to provide for the custody and control of minor children. No
such contract may, insofar as the children are concerned, abridge the power of the court
in appropriate proceedings to provide for the support of the children by their parents or
for their custody.” “The court’s jurisdiction over child support issues may not be
restricted by the parents, and any agreement purporting to modify or divest the court’s
jurisdiction over child support is void as contrary to public policy.” (In re Marriage of
LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1341; In re Marriage of Bereznak (2003)
110 Cal.App.4th 1062, 1068-1069.)
Thus, the 2017 protective order, including the term purporting to preclude use of
the information in the ongoing family law proceedings between Blum and Herbstman,
cannot divest the court of its jurisdiction over matters relating to child support.
B. The trial court retained jurisdiction over Smith-Ostler calculations
Blum next contends that the trial court could not order discovery because the trial
judge had not reserved jurisdiction over “any portion of [his] [m]otion to [d]etermine
[Smith-Ostler] [a]rrears” at the August 2019 hearing nor was there any motion pending
7
related to child support. It is clear from the record that Blum is incorrect. The court, in
both its comments at the August 2019 hearing and in the order following that hearing,
expressly reserved jurisdiction over the calculation of Smith-Ostler arrears and expressly
gave Herbstman permission to conduct discovery to that end.
It is hard to imagine how the trial court could have articulated itself more clearly
at the August 2019 hearing. The trial court told Herbstman that her “rights to discovery
are not impeded in any way,” she was “free to conduct whatever discovery” she wished,
and she would “have the opportunity to present whatever evidence” she uncovered “in an
evidentiary hearing.” The court concluded by stating that it “retains jurisdiction over
Smith-Ostler.” Although the court’s subsequent written order does not again mention
that it retained jurisdiction over Smith-Ostler,8 it includes the judge’s handwritten
insertion that “this amount [i.e., Smith-Ostler arrears] is without prejudice for
[Herbstman] to dispute amount and conduct discovery.”
Blum points out that, during the hearing, the court referred to the Department of
Child Support Services (DCSS) and its jurisdiction to enforce child support obligations.
In his view, the court’s written order “merely correctly relays the appropriate jurisdiction
of the court versus DCSS” as to “who would determine the child support arrears and who
would determine the Smith/Ostler arrears.” We are not persuaded that the trial court’s
explanation of DCSS’s responsibility to “determine[] and enforce[]” the child support
order versus its own authority to calculate Smith-Ostler equates to a disclaimer of either
the trial court’s jurisdiction over Smith-Ostler or its associated authority to permit
Herbstman to conduct further discovery related to that issue.
8
The minute order from the hearing states: “The Court retains jurisdiction over
Smith-Ostler.” This is in direct contradiction to Blum’s assertion at page 34 in his
opening brief that “Nowhere in the August 29, 2019 . . . minute order does the court
reserve jurisdiction.”
8
We are similarly unconvinced by Blum’s parsing of the handwritten notation in
the August 2019 order. He contends that the court denied Herbstman’s request for a
continuance of the August 2019 hearing without prejudice, and that Herbstman “failed to
bring a new action on the issue of arrears within the time frame permitted.” His
argument fails to explain the trial court’s repeated explicit statements that Herbstman
would be permitted to conduct further discovery related to Smith-Ostler calculations and
could present the fruits of that discovery in an “evidentiary hearing.”
Finally, we reject Blum’s claim that the trial court could not have ruled on
Herbstman’s motion to compel because there was no pending motion regarding child
support. The trial court’s statements at the August 2019 hearing, as well as its
handwritten notation in the ensuing order, made clear that it endorsed Herbstman’s right
to pursue additional discovery regarding Blum’s finances for the purposes of calculating
Smith-Ostler amounts. The trial court expressly retained jurisdiction over Smith-Ostler,
and thus had the authority to compel Blum to provide further responses to Herbstman’s
discovery related to that issue.
C. Blum’s automatic stay argument
Blum argues that the court had no jurisdiction to act on Herbstman’s motion to
compel discovery because the matters were subject to an automatic stay, per Code of
Civil Procedure section 916, by virtue of Herbstman’s appeal in Blum. Specifically,
Blum argues that the November 10 order is void because the court “lost subject-matter
jurisdiction to decide matters pertaining to Blum’s April 2019 [request for order] for
arrears and the August 29, 2019 [order].” We disagree.
As set forth in the Code of Civil Procedure, and subject to enumerated exceptions,
“the perfecting of an appeal stays proceedings in the trial court upon the judgment or
order appealed from or upon the matters embraced therein or affected thereby . . . .”
(Code Civ. Proc., § 916, subd. (a).) This automatic stay “protect[s] the appellate court’s
jurisdiction by preserving the status quo until the appeal is decided.” (Elsea v. Saberi
9
(1992) 4 Cal.App.4th 625, 629; accord, Varian Medical Systems, Inc. v. Delfino (2005)
35 Cal.4th 180, 189.) It “prevents the trial court from rendering an appeal futile by
altering the appealed judgment or order by conducting other proceedings that may affect
it.” (Elsea, supra, at p. 629; Varian, supra, at p. 189.) “To accomplish this purpose,
section 916, subdivision (a) stays all further trial court proceedings ‘upon the matters
embraced’ in or ‘affected’ by the appeal. In determining whether a proceeding is
embraced in or affected by the appeal, we must consider the appeal and its possible
outcomes in relation to the proceeding and its possible results.” (Varian, supra, at
p. 189.)
Here, the trial court acted on Herbstman’s motion to compel production of
documents during the pendency of the appeal in Blum. In Blum’s view, Herbstman’s
appeal from the August 29, 2019 order regarding Smith-Ostler arrearages (Blum, supra,
p. 7) divested the trial court of jurisdiction to act on her discovery motion.
The proceedings on Herbstman’s motion to compel production of documents did
not involve matters that were either “embraced in or affected by” Herbstman’s appeal in
Blum and Blum offers no substantive argument to support his jurisdictional argument. At
issue in that appeal was the propriety of the trial court’s August 2018 order which, among
other things, deemed that fees owed to court-appointed professionals were add-on child
support. Blum offers no explanation as to how the trial court’s ruling on Herbstman’s
discovery motion would have affected this court’s exercise of appellate jurisdiction.
Blum’s obligation to respond to Herbstman’s discovery requests, while related to the
matter of child support, was not embraced in or affected by the question of whether the
trial court erred in directing that the fees owed to court-appointed professionals qualified
as add-on child support. Accordingly, the trial court had jurisdiction to address
Herbstman’s discovery motion and the November 10 order did not violate the automatic
stay under Code of Civil Procedure section 916.
10
D. November 10 order is not a retroactive modification of child support
Blum next claims that, even if the trial court had reserved jurisdiction over
Smith-Ostler at the August 2019 hearing, the court’s November 10 order was an abuse of
discretion because “accrued child support arrears cannot be modified.” We disagree.
Blum is putting the proverbial cart before the horse. The November 10 order did
not address or modify Blum’s child support obligations or the Smith-Ostler calculation in
any way. While it is certainly true that child support may not be retroactively modified,
as both parties agree, the November 10 order makes no such modification. If, in the
future, after Blum has complied with the November 10 order and the parties are able to
present relevant evidence and argument to the trial court, the court is required to follow
the applicable law in deciding how to rule on any motion brought by Herbstman relating
to Smith-Ostler calculations. In the absence of any such order, however, we will not
construe the November 10 order compelling further responses as something it is not.
E. No abuse of discretion in failing to take evidence at discovery hearing
Blum next argues that the trial court abused its discretion by failing to take
evidence or live testimony at the hearing on Herbstman’s motion to compel. We
disagree.
There was no court reporter at the November 9 hearing, so there is no transcript
for us to review. The minute order does not reflect that Blum requested an opportunity to
provide evidence or live testimony. Leaving aside the fact that Blum did not seek to
introduce evidence or testimony at the November 9 hearing,9 we conclude that the trial
court was under no obligation to hear testimony or evidence before ruling on
Herbstman’s motion.
9
Blum first raised this claim of error in his motion to set aside, reconsider, or have
a new trial on the November 10 order. As with his argument regarding the 2017
protective order, we find Blum’s belated assertion of this argument to the trial court is
sufficient to avoid waiver. (In re Marriage of Arceneaux, supra 51 Cal.3d at
pp.1132-1134.)
11
Blum’s citations to Family Code section 21710 and rule 5.113(a)11 are not
particularly helpful to his cause. “While [Family Code] section 217 requires the court to
receive ‘relevant’ testimony that is ‘within the scope of the hearing’ when offered by the
parties [citation], it does not foreclose the parties from submitting evidence through other
means, such as declarations, pleadings, etc.” (In re Marriage of Binette (2018) 24
Cal.App.5th 1119, 1129, italics added.) Blum makes no showing that he offered to
introduce evidence or testimony in connection with the hearing on Herbstman’s motion to
compel. Further, he has never indicated to the lower court or this court what evidence or
testimony relevant to the issue under consideration, i.e., the propriety of Herbstman’s
discovery requests and his bases for not responding thereto, he would offer.
Finally, we are not persuaded that either Family Code section 217 or rule 5.113(a)
control in discovery proceedings. (See In re Marriage of Swain (2018) 21 Cal.App.5th
830, 839-840 [suggesting distinction between family law motions concerning
“ ‘substantive relief regarding the fundamental issues in controversy’ ” and “ ‘purely
procedural motions, such as those occurring in civil litigation’ ”]; In re Marriage of
Boblitt (2014) 223 Cal.App.4th 1004, 1022 [“[n]o statute or rule of court exempts a
10
Family Code section 217 provides: “(a) At a hearing on any order to show
cause or notice of motion brought pursuant to this code, absent a stipulation of the parties
or a finding of good cause pursuant to subdivision (b), the court shall receive any live,
competent testimony that is relevant and within the scope of the hearing and the court
may ask questions of the parties. [¶] (b) In appropriate cases, a court may make a finding
of good cause to refuse to receive live testimony and shall state its reasons for the finding
on the record or in writing. . . . [¶] (c) A party seeking to present live testimony from
witnesses other than the parties shall, prior to the hearing, file and serve a witness list
with a brief description of the anticipated testimony. If the witness list is not served prior
to the hearing, the court may, on request, grant a brief continuance and may make
appropriate temporary orders pending the continued hearing.”
11
Rule 5.113(a) provides that “[u]nder Family Code section 217, at a hearing on
any request for order brought under the Family Code, absent a stipulation of the parties or
a finding of good cause under (b), the court must receive any live, competent, and
admissible testimony that is relevant and within the scope of the hearing.”
12
marital dissolution proceeding from the application of the Civil Discovery Act”]; Fam.
Code, § 210 [unless otherwise provided by statute or rule, “rules of practice and
procedure applicable to civil actions generally . . . apply to, and constitute the rules of
practice and procedure in, proceedings under [the Family Code]”].) Blum, who has the
burden of showing reversible error, cites no case holding otherwise, and our research has
not disclosed any.
The motion at issue here was a motion to compel discovery responses, not a
motion to terminate spousal support or other matter falling squarely within the ambit of
the Family Code. As such, the motion was “brought pursuant to” Code of Civil
Procedure section 2031.310, not the Family Code. (Fam. Code, § 217.) As a result, the
trial court did not abuse its discretion in not taking evidence or hearing testimony before
ruling on Herbstman’s motion.
F. The trial court applied the correct standard in ruling on the motion to compel
Blum’s final argument is that the trial court employed an incorrect standard in
ruling on Herbstman’s motion to compel, failed to adequately protect his financial right
to privacy, and ordered production of documents “beyond the scope” of his original
motion to calculate child support arrears. We disagree.
1. Standard of review
“We review a trial court’s ruling on a motion to compel discovery for abuse of
discretion. [Citation.] ‘An abuse of discretion occurs if, in light of the applicable law
and considering all of the relevant circumstances, the court’s decision exceeds the bounds
of reason and results in a miscarriage of justice. [Citations.] This standard of review
affords considerable deference to the trial court provided that the court acted in
accordance with the governing rules of law. We presume that the court properly applied
the law and acted within its discretion unless the appellant affirmatively shows otherwise.
[Citations.]’ [Citation.] [¶] An abuse of discretion also occurs if the court applies an
13
erroneous legal standard or its factual findings are not supported by substantial
evidence.” (Kerner v. Superior Court (2012) 206 Cal.App.4th 84, 110.)
“[I]nformation, unless privileged, is discoverable if it might reasonably lead to
admissible evidence. [Citation.] The phrase ‘reasonably calculated to lead to the
discovery of admissible evidence’ makes it clear that the scope of discovery extends
to any information that reasonably might lead to other evidence that would be admissible
at trial. ‘Thus, the scope of permissible discovery is one of reason, logic and common
sense.’ [Citation.] These rules are applied liberally in favor of discovery.” (Lipton v.
Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612 (Lipton).)
“Appellate courts must keep liberal policies of discovery statutes in mind when
reviewing decisions denying or granting discovery. [Citation.] Absent a showing that
substantial interests will be impaired by allowing discovery, liberal policies of discovery
rules will generally counsel against overturning a trial court’s decision granting
discovery [citation] and militate in favor of overturning a decision to deny discovery.”
(Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987.) “Courts must instead place the
burden on the party asserting a privacy interest to establish its extent and the seriousness
of the prospective invasion, and against that showing must weigh the countervailing
interests the opposing party identifies, as Hill [v. National Collegiate Athletic Assn.
(1994) 7 Cal.4th 1] requires. What suffices to justify an invasion will . . . vary according
to the context. Only obvious invasions of interests fundamental to personal autonomy
must be supported by a compelling interest.” (Williams v. Superior Court (2017) 3
Cal.5th 531, 557.)
2. Analysis
In its ruling, the trial court, after acknowledging Herbstman’s failure to
“specifically address the good cause requirement [set forth in Code of Civil Procedure
section 2031.310, subdivision (b)(l)] in her moving papers” nonetheless found that “[t]he
information by the demand sought [sic] pertains to [Blum]’s assets and finances, which is
14
directly relevant to the reserved issue of Smith/Ostler arrears.” The court also then noted
that Blum “does not provide any evidence or argument to the contrary.” Based on this
finding, the court concluded “good cause exists for the discovery sought by the document
demand.”
It is difficult to see how the trial court can be said to have employed “the wrong
legal standard” in ruling on Herbstman’s motion to compel. Even assuming Blum had
objected to her requests as violating his right to privacy in his finances, that privacy
interest can be overcome where “the party seeking discovery of the information” has
shown “that the information is ‘directly relevant’ to a cause of action or defense, such
that disclosure is ‘essential to the fair resolution of the lawsuit.’ ” (Look v. Penovatz
(2019) 34 Cal.App.5th 61, 73.) Here, the trial court explained how the discovery
Herbstman sought, i.e., information regarding Blum’s assets and finances, was “directly
relevant to the reserved issue of Smith/Ostler arrears.” (Italics added.) Thus, while the
trial court may not have cited Look in its order, its analysis of the motion indicates that it
understood and applied the proper standard. “All intendments and presumptions are
indulged to support [the judgment] on matters as to which the record is silent.” (Wilson
v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563; In re Julian R. (2009) 47
Cal.4th 487, 498-499.)
Furthermore, as the responding party, Blum bore the burden of justifying the
objections he raised to Herbstman’s discovery requests. The trial court found he had not
only failed to carry that burden, but specifically noted that he made no “attempt to justify
any of the objections raised [in] his discovery responses.”
For much the same reason, Blum’s contention that the November 10 order was
“beyond the scope” of his original motion to calculate child support arrears also fails.
Blum cannot credibly argue that information related to his assets and finances is not
“directly relevant to the reserved issue of Smith/Ostler arrears.” His motion to calculate
child support arrears does not establish the “scope” of permissible discovery on that
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matter. “ ‘[T]he scope of permissible discovery is one of reason, logic and common
sense.’ ” (Lipton, supra, 48 Cal.App.4th at p. 1612.) “[Family Code] [s]ection 4053
provides that ‘[a] parent’s first and principal obligation is to support his or her minor
children according to the parent’s circumstances and station in life,’ that ‘[e]ach parent
should pay for the support of the children according to his or her ability,’ and that
‘[c]hildren should share in the standard of living of both parents.’ (Id., subds. (a), (d) &
(f).)” (In re Marriage of Usher (2016) 6 Cal.App.5th 347, 356.) Given California’s
strong public policy in favor of child support, the trial court acted well within its
discretion in determining that the documents sought by Herbstman were relevant to the
question of Smith-Ostler arrears.
III. DISPOSITION
The trial court’s November 10, 2020 order is affirmed. Herbstman shall recover
her costs on appeal.
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___________________________________
Wilson, J.
WE CONCUR:
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Grover, Acting P.J.
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Danner, J.
Blum v. Herbstman
H048887