Family Law 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) 521-6836 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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TENTATIVE RULINGS

LAW & MOTION CALENDAR

Thursday, March 6, 2025 9:00 a.m.

Courtroom 21 –Hon. Kinna Patel Crocker

3055 Cleveland Avenue, Santa Rosa CA 95403

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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 department’s Judicial Assistant by telephone at (707) 521 - 6836 by 4:00 p.m. on the day before the hearing. Any party requesting an appearance must notify all other opposing parties/counsel of their intent to appear.

1. 24FL00942, Salazar Onate v. Salazar

      MOTION TO SET ASIDE REQUEST TO ENTER DEFAULT filed on 11/12/2024  DENIED.
           Facts

            Petitioner filed this petition for dissolution of marriage without minor children on May 8, 2024.  In October 2024, Respondent filed a request for domestic violence restraining order (“DVRO”) in this action, obtaining a temporary DVRO and hearing date.  However, she did not respond to the petition or take other action. 

            Petitioner filed a request to enter default on November 12, 2024 and the court entered default on that date.  Petitioner then filed his response to the DVRO request and the court continued that hearing to January 2025 before continuing it again to April 2025.

Motion

            Respondent moves to vacate the default.  She alleges that Petitioner was in fact already married when they married; she only discovered his prior marriage later. She states that she is concerned about the implications of a divorce and property division if they were not legally married due to Petitioner’s existing marriage, and she wishes to file a response to the petition seeking nullity of marriage.   However, she does not address the legal or factual bases for setting aside the default. 

            Petitioner opposes the motion.  He contends that this is the second dissolution action he has filed, since he dismissed the first one after the parties reconciled, and that both times he properly served Respondent but she never responded.  He argues that the record shows that she was aware of these proceedings since she filed her DVRO application in this action; he had intended to obtain the default earlier but delayed due to a shortage of funds; and, her appearance to obtain the DVRO was in retaliation for his attempt to obtain a divorce, promoting him to seek the default.  He also points out that her motion provides no explanation for why she failed to respond or why the court should set aside the default.  Finally, he responds to her accusations about the marriage, stating that they are false and that his prior marriage had ended in a divorce before he married Respondent.

Applicable Authority

            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 pursuant to CCP section 473.  See, e.g., In re Marriage of Zimmerman (2 Dist. 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).

Within the six-month period for seeking relief under CCP section 473(b), relief from orders in family law cases may therefore be based on the grounds generally applicable to motions to vacate under CCP section 473, or a party may also seek relief pursuant to Fam.Code section 2120 et seq., specifically as set forth in section 2022.  In re Marriage of Zimmerman, supra; Marriage of Thorne & Raccina (2012) 203 Cal.App. 4th 492, 499, fn. 3; Marriage of Kieturakis (2006) 138 Cal.App. 4th 56, 87. 

            CCP §473(b) allows parties to set aside dismissals or defaults based on mistake, inadvertence, surprise, or excusable neglect.  CCP § 473(b).  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.4^th 333, 345. 

An order setting aside the default is discretionary where based on mistake, inadvertence, surprise, or excusable neglect.  Id.  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. See, e.g., Goodson v. Bogerts, Inc. (1967) 252 Cal.App.2d 32;  Hansen v. Hansen (1961) 190 Cal.App.2d 327;  Reed v. Williamson (1960) 185 Cal.App.2d 244.

“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” comes down to 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. 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.4^th 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).      

            Fam. Code 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 Cal.App.4th 128, 137.

            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.App. 4th 673, 685.

            Respondent does not provide any basis for setting aside the default.  She presents potentially significant issues regarding the marriage and its legal status, which have the potential to materially impact the judgment.  However, she presents no basis or explanation whatsoever for setting aside the default.  The record also contains a facially valid proof of service for the summons and petition while it unequivocally demonstrates that she was aware of this action prior to the default because she filed her own application in these proceedings before Petitioner sought the default.  The court also notes that the default is not the same as the judgment and that no judgment has yet been entered. 

Conclusion

            The court DENIES the motion.  The prevailing party is to prepare an order conforming with the order of the court, submitting it to the opposing party for review five days prior to submitting it to the court.

2. SFL084243, MacNeil v. MacNeil

MOTION TO VACATE OR DISMISS JOINDER AND SUMMONS CONTINUED to the law and motion calendar of April 17, 2025 in Department 21 at 9:00 a.m. for further briefing in order to address the issues set forth below, including specifically discussion of the applicable legal authority, missing facts, and the need for service or notice. 

Facts

            Petitioner filed this action for dissolution of marriage without minor children on October 2, 2019.  Respondent filed a response on January 21, 2020.  Petitioner filed a request for joinder of the California Public Employees’ Retirement System (“CalPERS”) for Respondent’s employee benefit plan on February 20, 2020.  CalPERS filed its notice of appearance and response on April 15, 2020.  Some limited and inconclusive litigation took place in 2020 through a hearing of March 5, 2021.  At the latter hearing, the parties and court discussed the status of the case, resulting in the court determining that the matter would be set back on calendar if the parties informed the court that they were ready to proceed further.

            No judgment has been entered on any issue and no further activity occurred in this proceeding until Respondent filed the instant motion on January 27, 2025. 

Motion

            Respondent moves the court to vacate or dismiss the joinder of CalPERS so that the latter may return the portion of his account which it has held pursuant to the joinder.  He bases the motion on the fact that Petitioner, who was potentially entitled to some or all of the portion of the CalPERS account being held for her, died intestate on October 19, 2024. 

            There is no opposition. 

Discussion

            Respondent presents no legal authority for this motion and no analysis whatsoever.  Respondent has not indicated what authority may govern this motion or allow the relief requested, or the legal standards. 

            Respondent also fails to address all of the facts which, on the face of the matter, may be material.  Respondent demonstrates that Petitioner is deceased, there has been no judgment on any issue in this action, including the marital status, and no order or other disposition of Petitioner’s potential share of the plan has been entered or put into effect. However, Respondent has not addressed whether any other party may have an interest in the retirement plan, including whether the parties in this case entered into any settlement or other agreement regarding property or assets, including the interests in the plan, and whether there are possible beneficiaries or heirs of Petitioner who may have an interest. 

            Respondent has also not addressed the possibility that potentially there are others who may require service and notice of this motion.  Respondent filed proof of service for the motion showing service on CalPERS, which is appropriate, but due to the missing information, the court is unable at this time to determine whether there may be other interested parties whom Respondent must serve. 

Conclusion

            Motion CONTINUED as explained above.

3. SFL090951, LeMond v. LeMond Jr.
   MOTION TO SET ASIDE DEFAULT JUDGMENT DENIED.

Facts

            Petitioner filed this action for dissolution of marriage with minor children on April 29, 2022.  At that time, she also filed a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) and other documents, but no other litigation or hearings took place, aside from a change of Petitioner’s attorney, before Petitioner filed an amended petition on November 30, 2023.  Petitioner then filed on March 12, 2024, her Income and Expense Declaration (“IED”) and a Request to Enter Default, which the court granted.  

            Both parties appeared at a hearing of June 27, 2024 at which Petitioner requested a prove-up hearing.  The court scheduled the prove-up hearing for August 27, 2024 and continued the matter to August 22, 2024 for a case resolution conference (“CRC”). 

            At the hearing of August 7, 2024, Respondent appeared and stated that he had received a copy of the proposed judgment.  He agreed to the property division and amount of child support but objected to the amount of spousal support.  The court ordered some changes and made orders for child and spousal support, directing Petitioner to prepare a new judgment packet.

            On August 13, 2024, Petitioner filed a Declaration for Default or Uncontested Judgment as well as a proposed Judgment which the court adopted and entered. 

Motion

            Respondent in his Request for Order (“RFO”) and Motion to Set Aside Default Judgment moves the court to set aside the default judgment pursuant to Code of Civil Procedure section 473(b) based on the assertion that the default judgment was the result of the fact that he relied on communications from Petitioner’s attorney to wait for further discussions regarding a proposed marital settlement agreement (“MSA”) instead of appearing to prevent the default judgment.  He specifically refers to a letter from Petitioner’s attorney on December 12, 2023 indicating that the attorney was preparing an MSA based on their agreement and e-mails with Petitioner and her attorney in March through June 2024 about completing the MSA.

            Petitioner opposes the motion.  The attorney explains that she properly served Respondent with the Request to Enter Default; Respondent’s own evidence and e-mails show that he was aware of the request; Respondent was informed of the need to file a response; the attorney made no statement inducing Respondent to delay but merely explained that she was preparing an MSA per the parties’ agreement; and Respondent failed to complete the MSA process before the default because he was hospitalized for a drug-and-alcohol overdose and then entered a rehabilitation program.  She also argues that the motion is untimely because it was filed more than six months after the entry of default on March 12, 2024.

Applicable Authority

            According to the Family Law Rules of the California Rules of Court (“CRC”) 5.2(d), and Family Code (“Fam. 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 pursuant to CCP section 473 or proceedings pursuant to the Civil Discovery Act set forth at CCP section 2016.010, et seq.  See, e.g., In re Marriage of Boblitt (2014) 223 Cal.App. 4th 1004, at 1022 (discovery); In re Marriage of Zimmerman (2 Dist. 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).

Within the six-month period for seeking relief under CCP section 473(b), relief from orders in family law cases may therefore be based on the grounds generally applicable to motions to vacate under CCP section 473, or a party may also seek relief pursuant to Fam.Code section 2120 et seq., specifically as set forth in section 2022.  In re Marriage of Zimmerman, supra; Marriage of Thorne & Raccina (2012) 203 Cal.App. 4th 492, 499, fn. 3; Marriage of Kieturakis (2006) 138 Cal.App. 4th 56, 87.  Fam. Code sections 2121, 2122, and 3691 provide the sole basis for relief only after the deadline for relief under CCP section 473.  See, In re Marriage of Zimmerman, supra; Marriage of Kieturakis, supra. CCP section 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 section 473(b). 

An order setting aside the default is discretionary when based on mistake, inadvertence, surprise, or excusable neglect.  Id.  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.  See, e.g., Goodson v. Bogerts, Inc. (1967) 252 Cal.App.2d 32;  Hansen v. Hansen (1961) 190 Cal.App.2d 327;  Reed v. Williamson (1960) 185 Cal.App.2d 244.

“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” comes down to 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. 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.4^th 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).

            Fam. Code 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 Cal.App.4th 128, 137. 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.App. 4th 673, 685.

            The fraud-based ground as set forth in section 2122 includes actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding.  This is broadly similar to the standard of extrinsic fraud or mistake as applied in the court’s extrinsic power to set aside in civil matters.  Accordingly, fraudulently inducing the other party not to retain counsel or not to appear in the action will be a basis for relief.  See Marriage of Stevenot (1984) 154 Cal.App. 3d 1051, 1060-1067; see also Kuehn v. Kuehn (2000) 85 Cal.App. 4th 824, 833.  As the court stated in Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, at 1114, “the strongest examples of extrinsic fraud occur when the aggrieved party is induced not to appear, relying on representations, in the context of a confidential relationship, that his interest will be protected.”

Timeliness

            The motion is not wholly untimely.  As explained above, a motion under CCP section 473(b) must be brought no later than 6 months from entry of default or judgment.  The motion is untimely as to the underlying default, but not as to the Judgment.  Vacating the Judgment but not the default is not an idle act because it may affect the ultimate outcome.

            Moreover, although Respondent’s motion does not clearly discuss Fam. Code sections 2121 and 2122, the arguments he raises implicate those provisions and the motion is timely even as to the default under those provisions.  

Substantive Discussion

            As Petitioner notes, under CCP section 473, Respondent cannot now challenge the default.  This leaves the Judgment as the only issue under that provision.  Respondent fails to demonstrate that there was any excusable neglect, inadvertence, mistake, or surprise, much less any misleading conduct from Petitioner, which resulted in entry of the actual Judgment.  Respondent’s arguments about the communications from Petitioner go only to the period leading to the entry of the default, not the Judgment.  The communications on which he relies, moreover, do not show any misleading statements or clear basis for reasonably failing to take action at that time.  The events resulting in the Judgment show that Respondent was also actively involved, attended hearings, and even stipulated to almost every aspect of the Judgment, except the spousal support. 

            With respect to possible relief under Fam. Code sections 2121 and 2122, Respondent likewise shows no clear basis for misleading conduct or reasonable belief that he did not need to take action.  Petitioner’s own factual assertions about Respondent’s treatment interfering with his participation in the litigation do raise concerns about the entry of default during that time, but Respondent has not expressly discussed this or provided any argument or explanation regarding his possible incapacity as a result of his condition and treatment.  Even if he did, he fails to demonstrate any possible basis for finding that relief would materially affect the outcome.  As discussed above, he actively participated in the proceedings which resulted in the actual Judgment, and he even stipulated on the record to all aspects of the Judgment except spousal support.  

Conclusion

            The court DENIES the motion.  The prevailing party is to prepare an order conforming with the order of the court, submitting it to the opposing party for review five days prior to submitting it to the court.    
 

4. SFL092454, Gonzalez v. Tomberlin
   ATTORNEY DUNST’S MOTION TO BE RELIEVED AS COUNSEL GRANTED.