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TENTATIVE RULINGS – FAMILY LAW Dept. 21
LAW & MOTION CALENDAR
FRIDAY, March 20, 2015 at 9:30 A.M.
COURTROOM #21 – Robert S. Boyd
(3055 Cleveland Avenue, Santa Rosa, CA)
The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact the Judicial Assistant by telephone at (707) 521-6732 by 4:00 p.m. on March 19, 2015. Any party requesting an appearance must notify all other opposing parties of their intent to appear.
SFL 54439, Garcia/Duke:
On January 15, 2015, Petitioner Eladio De La Cruz Garcia (hereinafter Husband) filed a motion to vacate a default judgment filed December 19, 2014. No request is made to set aside the default. A copy of the proposed filing to be made was not included.
Husband’s argument is premised on his statement that his prior attorney did not advise him of any upcoming or recurring hearings in this matter and that his prior attorney did not make his file available to him in a timely manner. Therefore, Husband argues the judgment should be set aside for a mistake pursuant to CCP §473(b), inadvertence CCP §473(b), surprise CCP §473(b) and excusable neglect CCP §473(b). Petitioner’s only argument is that because of the above, his failure to respond to the notice for master calendar and the notice of trial should be excused.
Based on a review of the file, the Court finds the following:
On October 7, 2013, Husband’s prior attorney was substituted out and Husband began to represent himself. On October 7, 2013, Husband, representing himself in pro per, filed a motion seeking a status only judgment. On November 15, 2013, the request was granted. On December 12, 2013, Husband, representing himself, filed a declaration of disclosures. On January 6, 2014, Husband, representing himself, filed a Notice of Entry of the Status Only Judgment. On January 23, 2014, both parties failed to appear at a Case Resolution Conference. The Court scheduled a trial on the reserved issues with the master calendar date of September 12, 2014.
On September 12, 2014, Maria Conception Arbarca Duke (hereinafter Wife) appeared at the master calendar call. Husband failed to appear. Wife also filed the Family Law form 157 “spousal or partner support declaration attachment” with a cover sheet indicating the hearing date of 11/25/14 at 9:00 a.m. in Department 21. The Court thereafter on September 19th issued a setting order indicating a trial date of November 25, 2014, at 9:00 a.m. in Department 21.
On November 25, 2014, Wife appeared at the trial date and Husband did not. Testimony was taken and the Court made the various orders reflected in the judgment filed on December 9, 2014.
The Court finds that Husband has made no factual basis supporting a claim of mistake or surprise. As to inadvertence or excusable neglect, the Court finds that given the activity initiated and complied with by Husband following the substitution of himself in as attorney of record in 2013, Husband cannot credibly claim that his failure to appear at the trial date was occasioned by late delivery of the file to him from his prior attorney or his prior attorney’s failure to advise him of upcoming events. Husband took significant action after he began to represent himself and the matter was set for trial.
Therefore, the Court finds that Husband has failed to meet the burden of proof required to have the default judgment set aside pursuant to CCP §473(b). Additionally, as stated above, Husband has failed to file the pleading is seeking the Court permission to file as well as to fail to request the dismissal of the default. Therefore, the Court denies Husband’s motion in its entirety.
SFL 64653, Mitchler/Buntain:
Per agreement of counsel, this matter to be continued to the master calendar date of May 29, 2015 at 9:00 a.m. in Dept. 21