Oct 07, 2022

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TENTATIVE RULINGS – FAMILY LAW

Dept. 22 LAW & MOTION CALENDAR

HON. JAMES G. BERTOLI
August 26, 2022, @ 9:30 a.m. in DEPT. 22

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 the day before the hearing. Any party requesting an appearance must notify all other opposing parties of their intent to appear.

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LAW & MOTION TENTATIVE RULINGS

DEPARTMENT 22

JUDGE JAMES G. BERTOLI

August 26, 2022, at 9:30 a.m.

1. SFL087684 IRMO RESENDIZ

Motion for Reconsideration is DENIED.

Introduction

This matter arises out of an action for marital dissolution filed by Jovita Resendiz (“Petitioner”) on January 27, 2021.

On March 16, 2021, Petitioner filed a Request to Enter Default and a Default was entered that same day. On December 9, 2021, the Court issued a Judgment for Dissolution.

On June 9, 2022, Ricardo Resendiz (“Respondent”) filed a Request for Order to set aside the Default and Default Judgment pursuant to California Code of Civil Procedure (“CCP”) §473. After a hearing on July 8, 2022, Respondent’s request was denied. Thereafter, Respondent filed this Motion for Reconsideration. Petitioner filed in response.^{^[1]}

Motion for Reconsideration

Respondent moves the Court to reconsider its denial of his June 9, 2022 Request for Order.

Respondent asserts pursuant to CCP §1008(a), based on new or different facts, the Court should reconsider his Request for Order for multiple reasons, 1) that Petitioner’s “FL-160 filed 3/16/21 is materially different from the one she filed with the judgment filed 12/9/21;” 2) that Petitioner’s “June 2022 Income and Expense Declaration is materially different from the one she filed with the judgment;” and 3) that Petitioner “deceived the court” and Respondent regarding Respondent’s bank statements. (RFO ¶A(1)-(3).)

CCP §1008(a) states,

“[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

According to the plain language of the statute, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances, or law.” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500, as modified on denial of reh’g (Apr. 3, 1995).) In addition to providing new or different facts, the moving party must provide a satisfactory explanation for failing to offer the evidence in the first instance. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 213-214; see also Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690-691 as modified on denial of reh’g (Nov. 19, 1997) [in which the First District held that facts that were already known but were not presented do not suffice for purposes of a motion for reconsideration per CCP §1008.])

Therefore, here, pursuant to the statute, the Court must focus its analysis on the new or different facts alleged by Respondent that were not already known at the hearing on the June 9, 2022, Request for Order.

First, the Court finds Respondent’s assertion that the FL-160s and Income and Expense Declarations filed by Petitioner are materially different are not grounds for relief because these are not allegations of new or different facts. All of these documents had been filed with the Court and accessible by Respondent prior to the filing of his June 9, 2022, Request for Order and the July 8, 2022, hearing.

Next, the Court finds Respondent’s assertion that Petitioner “deceived the court” and Respondent regarding Respondent’s bank statements is also not grounds for relief because, again, this is not a new or different fact. Respondent previously alleged this fact in his June 9, 2022, Request for Order, and as such it was considered by the Court at the July 8, 2022, hearing. (See June 9, 2022, Request for Order, ¶10 stating “[a]ll of [Petitioner’s] reported values of property and even bank account balances are wrong.”)

Conclusion

Accordingly, the Court DENIES Respondent’s Motion for Reconsideration.

[1] The Court notes no Proof of Service was filed with Respondent’s July 19, 2022 Motion for Reconsideration, however, because Petitioner has filed in response, the Court finds the Petitioner has waived any argument related to improper service or notice of the hearing and will address the substance of Respondent’s motion.

2. SFL091187 IRMO CHAVEZ/GUZMAN CHAVEZ

Request for Order toDismiss Petition is DENIED.

Introduction

This matter arises out of an action for marital dissolution (“Petition”) filed by Jose Marcelo Chavez (“Petitioner”) on June 6, 2022.

On July 20, 2020, Rosalinda Guzman Chavez (“Respondent”) filed this Request for Order. Petitioner filed a response. Respondent filed a reply.

Motion to Dismiss Petition

Respondent moves the court to dismiss the Petition. In support of her request, she asserts Petitioner “left for Mexico in December 2021” and that he has informed her that he is in Mexico as of the date of her filing of this request. She further alleges the signature on the Petition is not Petitioner’s and that he has “perjured himself with the Court” in his application for a fee waiver.

In response, Petitioner filed a declaration stating his permanent residence is in Santa Rosa, California and that he works in Sonoma County. (Petitioner Declr., ¶¶2-4.) He acknowledges that he visits Mexico “whenever possible” and recently visited this past spring for two months to care for his aging parents, but did not intend to stay there indefinitely. (Ibid.) He also states he signed the Petition and would testify to this fact if requested by the Court. (Petitioner Declr., ¶5.)

As Respondent has not provided the Court with any legal authority in support of her request, it is not clear on what legal basis she seeks to dismiss the Petition. However, based on her assertions it appears she is requesting the Petition be dismissed for lack of jurisdiction based on the residency requirement and the inauthenticity of Petitioner’s signature on the Petition. The Court will address each of these assertions in turn below.

Residency Requirement

Family Code section 2320(a) states, in relevant part “a judgment of dissolution of marriage may not be entered unless one of the parties to the marriage has been a resident of this state for six months and of the county in which the proceeding is filed for three months next preceding the filing of the petition.”

The Petition, signed by Petitioner, declares under penalty of perjury that both he and Respondent have been residents of the State of California for at least six months, and residents of the County of Sonoma for at least three months. Additionally, Petitioner’s declaration states that he lives and works in Sonoma County, with his permanent residence in Santa Rosa. Respondent alleges Petitioner is being untruthful as to where he currently resides, asserting Petitioner has informed her that he is in Mexico as of the date of the filing of this request, and that Petitioner’s brother informed her Petitioner had not returned to Sonoma County as of June 6, 2022. (See Respondent’s Reply Declr., ¶12.)

At this time, the Court does not need to make finding as to the validity of the assertions of either party because, even if the Court were to find Petitioner does not meet the residency requirements, Family Code section 2320(a) only requires one of the parties to be a resident of the county in which the proceeding is filed and, here, there is no indication or assertion that that Respondent does not reside in Sonoma County. In fact, the address used by Respondent in her filings is in Healdsburg, California, within Sonoma County.

Therefore, the Court will not dismiss the Petition on this basis.

Petitioner’s Signature on the Petition

Respondent alleges the signature on the Petition is not Petitioner’s signature. In response, Petitioner asserts in his declaration that he signed the Petition and would testify to this fact if requested by the Court. Currently, there is no evidence that leads the Court to believe Petitioner’s representation is untruthful.

Accordingly, the Court will not dismiss the Petition on this basis.

Conclusion

In summary, the court DENIES Respondent’s Motion to Dismiss Petition.

3. SFL59680 CANNON V. SKOFF

Motion to be Relieved as Counsel is granted. Petitioner’s attorney of record, Shawn R. Bunyard, is hereby relieved as counsel.

4. FL2100320 IRMO ELVINE-KREIS

Motion for Entry of Judgment/Stipulated Settlement Agreement Per CCP 664.6; Enforcement of Agreement GRANTED.

Facts

Petitioner filed this marital-dissolution action on April 27, 2021. Eventually, the parties took part in a settlement conference with retired Judge Donald King. On May 6, 2022, they reached a settlement (“the Settlement”), placed the terms on the record before the Honorable Lawrence Ornell with a court reporter, and agreed to the Settlement on the record. A minute order reflecting this, with a summary of the terms, was also entered. The terms set forth on the record and in the minute order include a statement that the court retains jurisdiction over issues “which may arise during the sale” of the house, Reporter’s Transcript (“RT”) 5:17-21; Minute Order. The terms also require Respondent during the period up to September 1, 2022, to “attempt to refinance the home, taking [Petitioner] off the mortgage, and pay to [Petitioner] an equalizing payment of $112,000.” RT 4: 5-10. The terms put on the record also state, “[i]f [Respondent] is unable to refinance the residence and make the $112,000 equalizing payment by September 1^st, 2020 [sic], the parties agree that the house shall be listed and sold.” RT 4: 11-14. The minute order reflects these same terms. The minute order adds that counsel will prepare judgment paperwork for the court to sign.

Motion

Petitioner moves the court to enforce the Settlement and enter judgment thereon pursuant to Code of Civil Procedure (“CCP”) §664.6, incorporating the terms of the Settlement. He contends that Respondent and her attorney have failed to sign the written version of the Settlement and have instead requested changes which differ from the terms as entered on the record. On August 8, 2022, Petitioner filed a supplemental exhibit with proof of service showing service of the document on that date. This consists of a copy of the reporter’s transcript for the proceedings of May 6, 2022, a copy of which this court already possessed.

Respondent filed an opposition on August 15, 2022, stating that she does not consent to the order requested but does consent to the court entering judgment per the terms of the stipulated judgment attached as Ex. F to the declaration provided with her opposition.

When a party seeks to enforce a stipulated settlement entered in writing or orally before the court, the court “may enter judgment pursuant to the terms of the settlement.” CCP §664.6. This seems to give the court discretion. In addition, when ruling on a CCP §664.6 motion, the court is a trier of fact and its ruling will be upheld if based on “substantial evidence.” Fiore v. Alvord (1985) 182 Cal.App.3^d 561, 566. As explained in Hines v. Lukes (2008) 167 Cal.App.4^th 1174, at 112, “[t]he court retains jurisdiction to enforce a settlement under the statute even after a dismissal, but only if the parties requested such a retention of jurisdiction before the dismissal. (Citation) Such a request must be made either in a writing signed by the parties or orally before the court.”

The court in Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4^th 793, at 797 emphasized that before “judgment can be entered, two key prerequisites must be satisfied.” These are contract formation and a writing signed by the parties with the material terms. Id. As with other contracts, if there is no meeting of the minds on the material terms, then no contract has been formed. Id., 797. Absent such a contract, there is no settlement agreement which the court may enforce. Id. Section 664.6 only applies to agreements made in writing and signed by the parties, or orally before the court. If the agreement does not meet these requirements, the party cannot enforce it under section 664.6. Weddington, supra, 809-810.

The general policy is in favor of carrying out the parties’ intentions by enforcing contracts, and disfavors finding contracts unenforceable due to uncertainty. See Larwin-Southern California, Inc. v. JGB Investment Co. (1979) 101 Cal.App.3^d 626, at 641. The court in Larwin-Southern stated that neither law nor equity requires every term and condition to be set forth in the contract and that the court may look to “the usual and reasonable terms found in similar contracts” and it may infer unexpressed provisions from the writing, the circumstances, custom, and usage, as long as they do not alter the terms of the agreement. Id. “At bottom,” the court said, “if the parties have concluded a transaction in which it appears that they intend to make a contract, the court should not frustrate their intention if it is possible to reach a fair and just result, even though this requires a choice among conflicting meanings and the filing of some gaps the parties have left.” Id.

As explained above, “[t]he court retains jurisdiction to enforce a settlement under the statute even after a dismissal, but only if the parties requested such a retention of jurisdiction before the dismissal. (Citation) Such a request must be made either in a writing signed by the parties or orally before the court.” Hines v. Lukes (2008)167 Cal.App.4th 1174, 112. Otherwise, “voluntary dismissal of an action or special proceeding terminates the court’s jurisdiction over the matter.” In re Conservatorship of Martha P. (2004) 117 Cal.App.4th 857, 867.

A number of cases have opined on exactly what is required for the court to retain jurisdiction. Sully-Miller Contracting Co. v. Gledson/Cashman Construction, Inc. (2002) 103 Cal.App.4th 30, at 37, for example, ruled that “[b]ecause of its summary nature, strict compliance with the requirements of section 664.6 is prerequisite to invoking the power of the court to impose a settlement agreement.” See also Critzer v. Enos (2010) 187 Cal.App.4th 1242, 1262.

Wackeen v. Malis (2002) 97 Cal.App.4th 429, at 440, found that a request for the court to retain jurisdiction under section 664.6 “must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.” It added that the “request must be express, not implied from other language, and it must be clear and unambiguous.” Ibid.

Retained Jurisdiction

The court finds that it has jurisdiction to enforce the Settlement as requested. It notes that the statement on the record about this court’s retained jurisdiction to enforce the Settlement arguably appears to be limited, according to both the actual statement of terms set forth in the transcript and the minute order. As noted above, the terms stated on the record include the provision that the court retains jurisdiction over issues “which may arise during the sale” of the house (RT 5:17-21) and the minute order has substantially the same language. This could be taken to mean that the court retains jurisdiction only for issues arising from the sale, which clearly is not the kind of issue raised in this motion. However, even if that were the correct interpretation of that statement of retained jurisdiction, the court finds that is immaterial here and need not reach it. As explained above, the court will retain jurisdiction regardless as long as there has been no dismissal or other final resolution of the proceedings and as of yet, no dismissal has been filed so that the proceedings unequivocally remain pending before this court.

The court therefore finds that it has jurisdiction to hear this matter and grant the relief requested.

Substantive Discussion

Petitioner claims that under the terms of the Settlement entered on the record, Respondent was to refinance the mortgage on the parties’ residence at 3671 F Street, Eureka, CA (“the Property”), remove Petitioner’s name, and pay Petitioner a $112,000 owed by September 1, 2022, and that if Respondent failed to do so, the Property was to be listed for sale on that date. As detailed above, Petitioner is correct; both the terms as set forth on the record reflected in the transcript and the minute order clearly include these specific terms. Petitioner shows that Respondent is now attempting to require repairs to the Property and compel Petitioner to pay for half of the repairs, and is asserting that the Property only needs to be listed “as soon as practicable” instead of on September 1, 2022. Petitioner Dec., ¶¶7-8. Petitioner is correct that Respondent’s requests are not part of the terms of the Settlement and in fact directly conflict with the clear Settlement terms.

Petitioner also shows that Respondent has refused to sign a written version of the Settlement. Gallegos Dec.; Fralicks Dec.

In her opposition, Respondent provides as Ex. F a modified version of the written Settlement which differs, regarding the Property, in the terms which Petitioner discusses in his motion. Respondent seeks to have the Property listed for sale “as soon as practicable,” but the parties agreed before the court and on the record that it would be listed on September 1, 2022. She also includes terms regarding repairs to the Property and terms which would impose on both an equal burden for the repairs. These terms are similar to those which Petitioner has discussed Respondent requesting and, again, they are not part of the terms to which the parties agreed. The imposition on Petitioner of half the costs of the repairs also appears to conflict with the clear agreement in other respects regarding the Property, such as the agreement that Respondent is awarded the Property, as well as the fact that Respondent is the party who has obtained the benefit of living on, and exclusive use of, the Property. See Petitioner Dec., ¶9.

Respondent has requested attorney’s fees and costs while Petitioner in reply asks for such an award as well. However, the Settlement terms include no indication that any party may be entitled to recover attorney’s fees and costs. It in fact states, at RT 8:10-14, that each party will bear its own fees. It includes no other discussion of this issue.

The court will GRANT the motion. The prevailing party shall prepare and serve a proposed order consistent with this tentative ruling within five days of the date set for argument of this matter. Opposing counsel shall inform the preparing counsel of objections as to form, if any, or whether the form of order is approved, within five days of receipt of the proposed order. The preparing party shall submit the proposed order and any objections to the court in accordance with California Rules of Court, Rule 3.1312.

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