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Family Law Tentative Rulings

Law & Motion Calendar

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

June 21, 2024
9:00 a.m. 

 

  1. SFL092923, Campana/Nicolas-Campana Dissolution

Dropped per Notice of Dismissal pending filing.

  1. SFL094306, Partain Dissolution

Motion for Order to Set Aside Default Entered on 1/26/24 GRANTED.

Facts

            Petitioner filed this action for dissolution of marriage with minor child on August 22, 2023.  On October 17, 2023, Petitioner filed a proof of service for the summons, petition, Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), and related documents.  The proof of service shows service on Respondent by mail and acknowledgment of service at Delta Peanut, LLC, 9605 CW Post Road, Jonesboro, AR 72401, on September 13, 2023, with the acknowledgment signed September 15, 2023.  By October 17, 2023, Respondent had not appeared so Petitioner requested entry of default against him and the court entered his default as requested.  The original default stated that Petitioner does not seek money, property, costs, or attorney fees.  However, Petitioner requested a new, amended, entry of default on January 26, 2024, in which she states that she does seek  money, property, costs, or attorney fees.  The court entered the amended default on January 26, 2024. 

Motion

            Respondent moves the court to set aside the entry of default based on Code of Civil Procedure (“CCP”) §473(b), due to mistake, inadvertence, surprise or excusable neglect.  He contends that he previously filed an action for marital dissolution in Arkansas (the “Arkansas Action”), where he resides, and where Petitioner and their minor child, Paisley Kathleen Rain Partain (“Paisley”), had also resided until the parties separated in 2023 and where the parties own a home (the “Home”).  He adds that Petitioner had appeared in the Arkansas Action the same day he received the mailed service in this action, he thought that the mailed services was ineffective because not completed personally, and he and his Arkansas attorney, Nancy Hall (“Nancy”) believed that the matter was proceeding in Arkansas.  Despite his belief that the Arkansas Action is the proper action for resolution of this dispute, he states that he has decided not to pursue that issue and instead appear in this action.

            Petitioner opposes the motion.  She admits that the parties had lived in Arkansas but contends that the parties had moved to Sonoma County in November 2022, about 9 months before the parties filed their respective actions, Respondent moved back to Arkansas in early 2023, and the parties had agreed that Petitioner would file the divorce proceedings in Sonoma County, California. 

Discussion

            According to the Family Law Rules of the California Rules of Court (“CRC”) 5.2(d), and Family Code section 210, provisions applicable to civil actions generally apply to proceedings under the Family Code unless otherwise provided.  This includes the rules applicable to civil actions in the California Rules of Court and the Code of Civil Procedure (“CCP”), and specifically motions to vacate or set aside pursuant to CCP section 473.  See, e.g., In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, at 910-911 (discussing the applicability of Code of Civil Procedure section 473 when a party seeks relief from orders in family proceedings).

CCP §473(b) allows plaintiffs and defendants to set aside dismissals or defaults.  This motion must normally be made within a reasonable time, not to exceed 6 months from the date the order was entered.  CCP §473(b).  The motion must be brought within 6 months and the grounds for seeking the relief do not affect the deadline.  Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 345.   The motion “shall be accompanied by a copy of the answer or other pleading proposed to be filed… otherwise the application shall not be granted….”  CCP § 473(b).

An order setting aside the default is discretionary where based on mistake, inadvertence, surprise, or excusable neglect.  CCP § 473(b).

            There is also a policy in favor of hearing cases on their merits and the motion to vacate should be granted if the moving party shows a credible, excusable explanation.  Elston v. City of Turlock (1985) 38 Cal.3d 227.  The provision of this section authorizing court to relieve party from a judgment or order resulting from mistake, inadvertence, surprise or excusable neglect is remedial in its nature and is to be liberally construed so as to dispose of cases on their merits.  Ramsey Trucking Co. v. Mitchell (1961) 188 Cal.App.2d Supp. 862.

“Surprise” is “some condition or situation in which a party... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.”  Credit Managers Ass’n of So. Calif. v. National Independent Business Alliance  (1984) 162 Cal.App.3d 1166, 1173.

            “Excusable neglect” ultimately depends on whether the moving party has shown a reasonable excuse for the default.  Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.  The moving party must show that the default would not have been avoided through ordinary care.  Elms v. Elms (1946) 72 Cal.App.2d 508, 513.  The test ultimately is thus one of reasonable diligence.  Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58. 

A showing that the defendant was unable to understand what he was served with is sufficient to justify relief.  Kesselman v. Kesselman (1963) 212 Cal.App.2d 196, 207-208.  Another valid basis is if the defendant mislaid or misfiled the papers and as a result failed to obtain an attorney in time.  Bernards v. Grey (1950) 97 Cal.App.2d 679, 683-686.  Simply forgetting about the lawsuit or being too “busy” is not adequate.  Andrews v. Jacoby (1919) 39 Cal.App. 382, 383-384. 

Significant health problems or family tragedies may be sufficient to support a showing of  mistake, inadvertence, surprise, or excusable neglect.  Shapiro v. Clark (2008) 164 Cal.App.4th 1128 (death of a son is sufficient excuse); Kesselman v. Kesselman (1963) 212 Cal.App.2d 196, 207-208; Fink & Schindler Co. v. Gavros (1925) 72 Cal.App.688 (illness sufficient excuse where party had tried to hire attorney before falling ill).

            The court further notes that within the six-month period for seeking relief under CCP section 473(b), a party may also seek relief pursuant to Fam.Code section 2120 et seq., specifically as set forth in section 2022. Marriage of Thorne & Raccina (2012) 203 Cal.App. 4th 492, 499, fn. 3; Marriage of Kieturakis (2006) 138 Cal.App. 4th 56, 87.  After the deadline for CCP section 473, a party may still seek relief from default judgment in family proceedings only in accordance with the grounds in Fam. Code sections 2121 and 2122.  In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900, 910-911; Marriage of Thorne & Raccina, supra; Marriage of Kieturakis, supra

            Section 2122 sets forth the various bases for relief pursuant to that provision.  As to stipulated or uncontested judgments, or any part thereof, a motion under Fam. Code section 2122 may be based on mutual or unilateral mistake of law or fact.  Fam.Code section 2122(e).  Under this provision, “mistake” is broader than the “extrinsic mistake” standard applying to the court’s inherent power to set aside.  See Marriage of Brewer & Federici (2001) 93 Cal.App. 4th 1334, 1345, fn. 10; Marriage of Varner (1997) 55 Cal.App. 4th 128, 144.   Authority indicates that a party may seek relief on various grounds not otherwise recognized by the statute as long as they can be found to fall within the scope of “mistake” as broadly applied.  See Marriage of Walker (2012) 203 Cal.App. 4th 137, 147, (upholding validity of § 2122(e) motion to vacate community property ruling based solely on erroneous legal conclusion).  No wrongdoing is necessary for relief based on mistake.  Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1347, (wife honestly stated value of one of her pensions was “unknown” but valuation information was readily available to her).

            In proceedings to set aside pursuant to Fam.Code section 2121, the court also “shall find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.” Fam.Code section 2121(b); see also Marriage of Walker (2012) 203 Cal.App. 4th 137, 146; Marriage of Brewer & Federici (2001) 93 CA4th 1334, 1345; Marriage of Varner (1997) 55 CA4th 128, 137, 63 CR2d 894, 899.

            In other words, the moving party bears the burden of demonstrating both the presence of at least one of the statutory grounds for relief and that the circumstances resulted in a material disadvantage to the moving party.  Marriage of Kieturakis (2006) 138 Cal.App. 4th 56, 89; Marriage of Rosevear (1998) 65 Cal.Ap. 4th 673, 685

Respondent also has provided a proposed response to the petition, as required.  His motion is also timely, having been filed within 6 months of the amended default requesting money, property, costs, or attorney fees.  Even if the motion were not timely based on the original, incomplete entry of default, Respondent could still obtain relief based on Fam. Code section 20122 as described above. 

            Preliminarily, it is clear that Respondent was properly served and knew of these proceedings when served in September 2023.  The record shows this and Respondent admits this. 

However, Respondent bases his motion on the facts regarding his previously filed Arkansas Action, in the state where he resides and where Petitioner and their minor child had also resided, and where the parties own a home.  Rocky Partain Dec.  He adds that Petitioner had appeared in the Arkansas Action the same day he received the mailed service in this action, so he and his Arkansas attorney, Nancy, believed that the matter was proceeding in Arkansas, while he had mistakenly thought that the service on him was defective. 

Petitioner argues that Respondent was properly served and knew about these proceedings for months, so has failed to demonstrate excusable neglect or a similar basis for this motion.  She bases this argument on the service here and on her history of the moves as well as the alleged agreement that she would file her action in this county. 

            In support of her claim that the parties agreed that she would file the divorce proceedings in this county, Petitioner relies on her Ex. A.  This consists of screen shots from what appears to be text messages between the parties in May through July 2023.  The statements include references to filing papers but nothing demonstrating an agreement that Petitioner would file the proceedings in this county.  The statements are vague and equivocal with respect to this point.  The court also notes that Petitioner has not properly provided a foundation or authentication for her exhibits so that they are not properly before the court as evidence.  

            Respondent’s argument is persuasive for the requested relief, setting aside the default.  Petitioner is not challenging the service or jurisdiction, but merely seeking to set aside the default in order to defend himself and participate fully in these proceedings.  Under the circumstances, his evidence and explanation qualify for relief both under CCP section 473 and on the basis of mistake under Fam.Code section 2122.  He demonstrates a mistake within the meaning of that provision and this mistake materially affected the outcome because he was rendered unable to challenge the issues of division of assets, debts or fees.  Petitioner’s evidence is insufficient to justify denying this motion.   

Conclusion

            The court GRANTS 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 party shall inform the preparing party 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.

                       

            It is SO ORDERED.

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