TENTATIVE RULINGS – FAMILY LAW

Dept. 22 LAW & MOTION CALENDAR

HON. JAMES G. BERTOLI
June 24 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.

PLEASE NOTE: If argument is requested in this matter you may appear in person or remotely via Zoom. To appear via Zoom please see the Zoom information below.

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LAW & MOTION TENTATIVE RULINGS

DEPARTMENT 22

JUDGE JAMES G. BERTOLI

JUNE 24, 2022, at 9:30 a.m.

1. SFL081072 IRMO MACALINO

Motion to Compel Production of Preliminary Declaration of Disclosure is granted. Petitioner shall serve her fully completed Preliminary Declaration of Disclosure no later than Friday July 22, 2022. Pursuant to Family Code Section 2011, Petitioner is ordered to pay Respondent $1,200 as a sanction for failing to produce her Preliminary Declaration of Disclosure in a timely fashion and for forcing Respondent to bring the instant motion.

2. SFL086372 IRMO KURTZ

Appearance required.

3. SFL087589 CHAVEZ V. GARCIA

Appearance required.

4. SFL089870 IRMO ACHYUTA

For the reasons set forth below, Petitioner’s Motion for Reconsideration filed on February 24, 2022, is DENIED.

Once an order is entered, the Court may set aside or modify an order only through procedures outlined in Code of Civil Procedure § 1008. Under the statute, a motion for reconsideration must:

1. Be filed within ten (10) days after service of notice of the order.

2. Be based upon new or different facts, circumstances or law. [CCP § 1008(a)] A party who seeks reconsideration must provide the new evidence and a satisfactory explanation for the failure to produce it before. [Hogoboom & King, California Practice Guide--Family Law (TRG 2021) Ch. 16, Challenging the Judgment: Motions, Appeals and Writs § 16:181.1]

Petitioner is asking the Court to reconsider three aspects of the Findings and Order After Hearing (FOAH) filed on February 16, 2022 which reflects an agreement reached by the parties and adopted in open court on December 28, 2021. The first relates to her then-pending request for a restraining order which was “dropped and replaced with a civil conduct order.” According to Petitioner, she never agreed to this order. She says “[t]here is no way [she] would have ever agreed not to have a restraining order that was enforceable.” She adds that she has, since the order was made, consulted with counsel and determined “[a] non-CLETS order . . . is not really worth the paper it is written on and non-enforceable by the police.” Reiterating, as Petitioner does, that she “would never have agreed to something that was unenforceable” does not make it so. The fact is she did. That she would never have agreed to the civil conduct order had she known it was, as she alleges, “unenforceable” is not a fact. Rather it is a mistake of law which is not grounds for reconsideration under CCP § 1008.

The second part of the order for which she seeks reconsideration provides as follows “Petitioner will allow Respondent to continue working for the dental practice . . .” She claims she “would never have allowed Respondent to continue to work in my dental practice” and she lists the various reasons why. But denying she agreed to the order is not grounds for reconsideration. There are no new facts or circumstances alleged here.

The third aspect of the order for which Petitioner seeks reconsideration is the interim support order which provides that “Petitioner will make sure that Respondent is paid a minimum of $5,000 a month.” Petitioner does not say she did not agree to this order. Rather, she claims she did not know at the time she agreed to the support order that she could not afford the amount she was agreeing to pay. According to her, she had little information about her business income and expenses because Respondent refused to provide it to her. This allegation is obviously calculated to satisfy the requirement that her motion be based on new facts of which she could not have been aware at the time of the order. But her declaration does not provide the new facts or circumstances of which she was allegedly unaware. She says only that “[i]t is unrealistic and impossible to pay [$5,000] based on my current income which is set forth in my current Income and Expense Declaration.” But the Court cannot and does not conclude from Petitioner’s “current” Income and Expense Declaration filed on February 23, 2022, that she could not afford on December 28, 2021, to pay $5,000 in monthly support. Even if the Court assumes Petitioner did not – on December 28, 2021 -- know how much money she made and had no way of knowing (because Respondent was preventing her from having such knowledge), Petitioner has not provided the Court with newly discovered facts of which she was then aware.

Appearance required regarding review of child custody & visitation issues and Order to Show Cause Re: Contempt.

5. SFL58195 IRMO PROVOST

There being no opposition to the motion and given that both parties are now residing in Travis County, Texas, the Motion for Change of Venue to Travis County, Texas is GRANTED.

*This is the end of these Tentative Rulings*

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TENTATIVE RULINGS – FAMILY LAW

Dept. 22 LAW & MOTION CALENDAR