Mar 27, 2015

LAW & MOTION TENTATIVE RULING – FAMILY LAW Dept. 23 

JUDGE BRADFORD J. DEMEO
IN COURTROOM 23
FRIDAY, March 20, 2015 @ 9:30 A.M.

 

Tentative Rulings

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., Thursday, March 19, 2015. Any party requesting an appearance must notify all other opposing parties of their intent to appear. 

      

        

           

Greer v. Moore SFL-47970

 

            The motion to withdraw as counsel is GRANTED.

 

 

IRMO Binz SFL-58410

 

            Respondent’s Request for Order for Reimbursement is GRANTED.  Petitioner shall pay to Respondent $8,769.78 as reimbursement for damage to the Toyota 4-runner, diminution in value while in possession of Petitioner, Petitioner’s share of a dental bill for their child, and one-half the credit card bills as alleged.  Respondent’s Request for Order is GRANTED in part and DENIED in part.  Respondent shall pay the $2,500 pursuant the Stipulation and Order filed September 30, 2015.  This payment may be offset against the amount Petitioner is ordered to pay Respondent for the reimbursements ordered on Respondent’s current Request for Order.  Respondent alleges he has paid Donna Nolan his share of the QDRO preparation fee, and is now a non-issue.  Respondent shall pay all outstanding tuition no later than April 30th, or arrange a proper payment schedule with the school so as not to cause his child to be unenrolled.  The wage assignment for tuition is denied.  Respondent shall pay to Petitioner $130 for sports and activity fees incurred.  The Court finds that Respondent earns $8600 per month, pays $105 per month in union dues, and a necessary commute expense of $303 per month.  Petitioner is imputed with income of $2,305 per month.  A deduction to Petitioner for health insurance is disallowed as there is evidence in the court record that she is using Medi-Cal for health care.  The Court is not imputing rent-free housing as income to Petitioner.  The Court finds that Respondent’s parenting time is 40%.  Therefore, guideline child support is set at $769 per month pursuant to a Dissomaster calculation to begin January 1, 2015.  Assuming that Father has paid previously ordered child support for January through march 2015, the Court finds that there are child support arrears for that time period in the amount of $17 for each of those months, which shall be added to the current $200 per month arrears payment previously ordered until paid in full. 

 

 

IRMO Verdu SFL-59618

 

            Petitioner Kathryn VERDU’s motion to set aside the August 7, 2014 stipulation and order is DENIED.  Initially, the Court notes that no points and authorities were submitted and no legal citations set forth in the motion. 

            To the extent moving party is seeking discretionary relief under CCP Sec.473(b), moving party fails to demonstrate good cause for relief.  Moving party’s basis for relief is vague and ambiguous.  It is patently unreasonable to believe that moving party didn’t understand that the stipulation and order that she signed was an enforceable order.  Additionally, moving party failed to exercise diligence in seeking relief.  The stipulation and order required the parties to take immediate action on certain matters, such as the allocation of responsibility to pay the mortgage and spousal support payments.  The nature of stipulated order and its enforceability should have been immediately obvious, yet petitioner waited several months before expressing any desire to set aside the stipulation and order.

To the extent moving party is seeking a set aside on the grounds that the stipulation and order was defective because it was not a complete settlement, the claims is without merit.  The Court notes that judgment has not been entered in this case.  The stipulation and order specifically stated on the front page of the Judicial Council form that “All other issues are reserved until further order of the court.”  Furthermore, assuming arguendo a judgment is entered that leaves some assets unallocated, the proper procedure would be to seek division of those assets pursuant to Fam.C.Sec.2556 rather than setting aside the stipulation and order.

The motion is DENIED.

 

 

 

 

IRMO Miller SFL-64517

 

            Petitioner’s motion to compel discovery responses is GRANTED.  Respondent shall provide responses to form interrogatories set one, special interrogatories, set one, and demand for inspection and copying of documents and records set one, no later than April 10, 2015.  Further, Respondent is ordered to pay attorney fees and costs in the amount of $1,040.00 directly to Petitioner’s attorney no later than April 10, 2015, and sanctions in the amount of $1,500 for failure to cooperate in discovery as required by law and continued discovery abuse.  The sanctions shall be paid to Petitioner in monthly installments of $150 beginning April 1, 2015, until paid in full.  Any late unpaid balance of any sum hereby ordered shall bear interest at the statutory judgment rate of 10 percent per anum.  Petitioner may offset the sanction award against any spousal support owed to Respondent. 

 

IRMO Bettencourt SFL-67425

 

            Respondent Mother’s Motion is DENIED pursuant to  Erika K. v. Brett D. and Nicole O. (2008) 161 Cal.App. 4th 1259, 75 Cal.Rptr.3d 152.  The Court of Appeals in that case supports Petitioner’s contention that the listing of “proceedings” in Family Code §3021 to which that part of the Family Code applies is not exclusive. The Court of Appeals noted there are actually no provisions in the Family Code specifically limiting the types of proceedings in which 3d party custody may be granted.

            Citing Family Code §3022, the Court held that “child custody is governed by the Family Code, which grants broad discretion to the trial court. The trial court may make a child custody order ‘that seems necessary or proper.’” Furthermore, the Court referenced Family Code sections 3040 and 3041 in support of its conclusion that “proceedings,” other than those listed in Section 3021, can benefit from the provisions of Part 2, Sections 3020 et seq., including Section 3022.

            In citing Family Code Sections 3040 and 3041, which provides for child custody in nonparents in certain circumstances, and ordering custody in 3rd party nonparent, Nicole O., the Court of Appeals held “In order to award custody to a nonparent over the objection of a parent, the court must find that granting custody to the parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interests of the child (Family Code §3041(a)).”

            The “proceeding” held on January 30, 2015 was a proceeding to which the provision of Family Code §3022 applied and the custody orders made were to serve the best interest of the child.

 

IRMO Bennett SFL-67630

 

            Petitioner’s motion to compel delivery of his preliminary declaration of disclosure income and expenses declaration together with all of his financial information is GRANTED.  Respondent shall deliver to Petitioner the requested financial information, up to date preliminary declaration of disclosure in complete form, and his income and expense declaration in complete form with supporting documents, no later than April 28, 2015.  Petitioner’s request for sanctions for attorney fees in the amount of $1,500 and costs in the amount of $90 is GRANTED.  Respondent shall pay directly to Petitioner’s attorney the amount of $1,590 no later than April 10, 2015.  Any late unpaid balance of any sum hereby ordered shall bear interest at the statutory judgment rate of 10 percent per anum.

 

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