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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1. 24FL00298, Howell Dissolution

Motion Granted. Counsel is directed to submit order in accordance with the tentative ruling.

 

2. 24FL00870, Hernandez Dissolution

Motion to Bifurcate Marital Status and Enter Judgement Terminating Marital Status at the Hearing on this Request for Order CONTINUED to the law and motion calendar of February 13, 2026, in Department 22  at 9:30 a.m. to allow Respondent to provide the relevant information regarding the “IRA and 401(k) accounts” which his papers mention and to provide an FL-347 with complete information and proposed orders regarding any such accounts.  The parties may file opposition and reply papers per code based on the new hearing date.

Facts

            Petitioner filed this action for dissolution of marriage with minor children (the “Children”) on April 26, 2024.  Respondent filed his response on May 8, 2024, and subsequently the parties engaged in limited litigation regarding visitation and custody, with the parties finally entering into a stipulation and order for a parenting plan in October 2025.  No other significant litigation activities or determinations have yet occurred. 

Motion

            In his Request for Order (“RFO”) and Motion to Bifurcate Marital Status and Enter Judgement Terminating Marital Status at the Hearing on this Request for Order, Respondent moves the court to bifurcate the issue of marital status from other issues and enter a judgment of dissolution, with other determinations reserved, pursuant to Family Code section 2337.

            There is no opposition.

Applicable Law

            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”).  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 CCP section 473 when a party seeks relief from orders in family proceedings).           

            Marital dissolution actions may be “bifurcated” for an early “status-only” judgment, reserving jurisdiction over all other issues.  Fam. Code section 2337.  Upon noticed motion, the court may sever, or bifurcate, the issue of marital status from other issues and grant an early and separate trial on the issue of dissolution of marriage status, i.e., a “status only” judgment, expressly reserving jurisdiction of all other pending issues for a later determination.  Fam.Code section 2337(a), (f); see Marriage of Wolfe (1985) 173 Cal.App.3d 889, 894; Marriage of Bergman (1985) 168 Cal.App. 3d 742, 755.  According to Fam. Code section 2337(c)(5),

Until judgment has been entered on all remaining issues and has become final, the party shall indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the other party's rights with respect to any retirement, survivor, or deferred compensation benefits under any plan, fund, or arrangement, or to any elections or options associated therewith, to the extent that the other party would have been entitled to those benefits or elections as the spouse or surviving spouse of the party.

A party should request bifurcation request on the FL-300 Request for Order form with attached FL-315 Request or Response to Request for Separate Trial form.  CRC 5.390(a).  The moving party must also serve a preliminary declaration of disclosure with the motion unless the party has already done so.  Fam.Code section 2337(b).  According to CRC 5.390(a), “A party requesting a separate trial or responding to a request for a separate trial must complete Application or Response to Application for Separate Trial (form FL-315).”  Emphasis added.

            The Judicial Council has adopted a form FL-340 Findings and Order After Hearing cover sheet as well as form attachment FL-347 for an order granting a status-only bifurcation request.  However, the FL-180 form for judgments also applies and includes options for bifurcation and reservation of remaining issues.  FL-347 reflects the Family Code conditions for bifurcation of the status of marriage or domestic partnership.  Form FL-347 section 3 sets forth the court’s orders regarding retirement plans. 

Following this recitation of orders, the form requires the court to list each retirement plan and the type of order, i.e., 3a(1), 3a(2), or 3a(3), which the court is making for that plan.

            Petitioner does not fully provide the proper forms or required information.  He does present the motion on the FL-300 form along with the form FL-315, but he does not provide a form FL-347 for bifurcation with orders regarding retirement plans.  His moving papers include information regarding retirement and pension plans, but it is incomplete and unclear.  He states at FL-315 section 1 that the parties have no pension or retirement accounts, but he also states that they have “only IRA and 401(k) accounts.”  He provides no other information about these but on their face, they appear to be retirement accounts so Respondent must provide information regarding them.  He must also provide

a proposed FL-347, which should include details for the order regarding any accounts, unless he demonstrates that these are not retirement accounts in which Petitioner may have an interest.

            Otherwise, the motion is sufficient and persuasive.  The moving papers address the other issues over which the court will have continued jurisdiction.

Conclusion

The court CONTINUES the motion to allow Respondent to provide the relevant information regarding the “IRA and 401(k) accounts” which his papers mention and to provide an FL-347 with complete information and proposed orders regarding any such accounts.       

 

3 .25FL01580, Micheletti v Morris
 

Motion to Set Aside August 26, 2025, Court Order GRANTED.  The response DV-120, with its attachment, submitted with the motion is deemed filed as the response.  The court will schedule a new hearing on the request for domestic violence restraining order and serve the parties with notice of the hearing for the parties to attend. 

Facts

            Petitioner filed this action on July 31, 2025, seeking a Domestic Violence Restraining Order (“DVRO”) protecting her and restraining her ex-boyfriend, Respondent.  Initially, she filed a declaration regarding notice and delivery stating that she did not give notice of her request because she did not “feel it’s necessary” since she had not “actually filed the restraining order.”  The court denied the initial request for temporary DVRO pending a hearing, explaining that Petitioner had failed to serve notice on Respondent, failed to provide any basis for not serving Respondent, and had failed to provide sufficient evidence. 

            On August 1, 2025, a notice of hearing for the DVRO (the “Notice”) was filed, setting the hearing for 1:30 p.m. on August 26, 2025.  The Notice required service on Respondent, at least 5 days before the hearing, of a file-stamped copy of the Notice and all other indicated forms.

            On August 13, 2025, Petitioner filed her declaration in support of the DVRO request.  

            On the date of the hearing, August 26, 2025, Petitioner filed a proof of service showing that Respondent was personally served with the Notice on August 19, 2025.

Motion

            In his Request for Order (“RFO”) and Motion to Set Aside August 26, 2025, Court Order, Respondent moves the court to set aside the DVRO pursuant to Code of Civil Procedure sections 473 and 473.5.  He argues that nobody served him with any papers for this case until after the court issued the DVRO and he had no actual knowledge of the proceedings until he was served with the DVRO after the hearing.

            There is no opposition. 

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”).  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).

            Relief from orders, due to default or otherwise, in family-law cases may be based on the grounds generally applicable to motions to vacate under CCP section 473, or, after that deadline, only in accordance with the grounds in Fam. Code sections 2121, 2122, and 3691.  In re Marriage of Zimmerman (2 Dist. 2010) 183 Cal.App.4th 900, 910-911. 

CCP section 473(b) allows parties to move the court to set aside dismissals or defaults or the equivalent.  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).  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 section 473(b).

An order setting aside the default is discretionary whereas 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.  The provision should be liberally construed in order to afford relief.   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.

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” 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 that party 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 party seeking relief had 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. 

CCP section 473.5 provides the authority for setting aside a default, judgment, or equivalent order where service of the summons did not provide actual notice in time to defend the action.  This motion must be brought within a reasonable time, not more than the earlier of 2 years after entry of default judgment or 180 days after service of written notice of default.  CCP section 473.5.  This is in contrast to motions under CCP section 473(b), which must be filed within 6 months of the entry of the order or default or judgment, whichever is at issue.

Section 473.5 provides relief where service may have been proper on the face of the record but did not result in actual notice in time to defend the action.  See Randall v. Randall (1928) 203 Cal.462, 464-465.  The defendant or respondent is thus entitled to relief as long as the party did not receive actual notice, and imputed or constructive notice does not suffice.  Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.  However, the party must show that the lack of notice was not the result of inexcusable neglect or avoidance of service on his or her part.  Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077-1078.  Upon finding that defendant lacked notice in time to defend and that the lack of notice was not the result of the defendant’s neglect or avoidance of service, the court may set aside the default or default judgment “on whatever terms as may be just.”  CCP section 473.5(d).

The moving party “shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.”  CCP section 473.5(b).  In contrast to a motion under CCP section 473(b), however, this requirement lacks the language stating, “otherwise the application shall not be granted.”

            In his declaration, Respondent states that nobody served him with any papers for this case until after the court issued the DVRO and he had no actual knowledge of the proceedings until he was served with the DVRO after the hearing.  The history of Petitioner’s filings and her initial refusal, on the record, to serve the request because she did not feel that she needed to serve Respondent with anything until after the court had issued a DVRO, further supports Respondent’s claims.  

            Respondent also provides a copy of his proposed response to the DVRO request, and this states a defense.  In his papers, he contends that he and Petitioner have never been in any domestic relationship, and he refutes her claims of his conduct.  He also states that Petitioner herself engaged in violent conduct towards him. 

            There is no opposition.  Respondent has filed facially sufficient proof of service showing service on Petitioner by mail at her address of record.  He has also filed a statement that he was unable to locate Petitioner in person in order to serve her personally, but service by mail is sufficient.

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.

 

4. SFL71082, Miranda Dissolution

Motion to Vacate Support Orders Due to Error in Dissomaster Calculation CONTINUED to February 13, 2026 at 9:30am, in order to allow each party an opportunity to provide new, final, and complete moving, opposing and reply papers.  This is necessary to allow both parties full notice and opportunity to be heard and to allow the court to make a full and complete determination.  Respondent may file and serve a new brief and evidence by 16 court days before the new hearing.  Opposition must be filed and served at least 9 court days before the new hearing.  Reply must be filed and served at least 5 court days before ethe new hearing.  The court will consider those new papers as the sole briefing and evidence in place of all papers previously filed and it will not consider those papers filed up to this point.  The court is imposing this requirement in order to make the briefing, evidence, and issues before the court clear to both of the parties and the court.     

Facts

            Petitioner filed this action for dissolution of marriage with minor children on August 5, 2015.  The two children (the “Children”) are still minors.

            The court held a hearing regarding child support and other issues on April 28, 2023.  Both parties attended the hearing themselves, and with their respective counsel.  At the end of the hearing, the court on the record informed the parties that it adopted the tentative ruling as the court order (the “2023 Order”).  The court entered the order on May 9, 2023.  Petitioner filed proof of service on May 10, 2023, showing that Petitioner had served Respondent with the order and notice of entry of the order that day. 

            Starting as early as June 2023, further litigation continued on a regular basis throughout 2023 and into 2025.  This frequently involved issues of support and Respondent’s support obligations.  Respondent was actively involved in this litigation.   

            After a hearing on April 7, 2025, which both parties attended and at which they both presented argument, the court entered an order (the “April 2025 Order”) setting forth findings regarding Respondent’s income from all sources considering expenses, arrears of payments to Petitioner, child and spousal support obligations, and a payment schedule.  The court noted that Petitioner presented evidence, including a number of exhibits and that Respondent provided no rebuttal and provided nothing to show his actual income, payments, expenses, or the like.  The court also found Respondent not to be credible, due to differences in financial information between exhibits and tax documents, evidence of diversion of business funds for non-business purposes, and a failure to disclose necessary financial information and income. 

            Petitioner moved the court to impose monetary sanctions against Respondent for attorney’s fees in the amount of $26,000 under Family Code section 271 and $24,000 under Family Code section 2030.  She asserted that Respondent had continually delayed resolution, hidden assets, refused to participate meaningfully in the resolution process, or provide sufficient declarations of disclosure.  At the hearing of April 16, 2025, the court found that Respondent had the ability to pay the sanctions, with assets including multiple bank accounts and lines of credit and it granted the motion (the “Sanctions Order”). 

            Respondent filed a Motion for Reconsideration of Order Imposing Sanctions, asking the court pursuant to Code of Civil Procedure section 1008 to reconsider the Sanctions Order of April 16, 2025, imposing monetary sanctions on him.  The court heard the matter in July 2025 but continued it to August 22, 2025, for an additional hearing, after which it denied the motion. 

Motion

            In his Request for Order (“RFO”) and Motion to Vacate Support Orders Due to Error in Dissomaster Calculation, Respondent moves the court pursuant to Code of Civil Procedure section 473(b) and Family Code sections 3651(c) and 3691 to “overturn” or modify two court orders imposing what he calls “disproportionate financial obligations… as a result of substantial material errors.”  He challenges the child and spousal support amounts in the 2023 Order of May 9, 2023, based on alleged “inaccurate percentage of actual custodial time” which he spends with the Children.  He challenges the 2025 Order  of April 7, 2025, as well.  Asserting that the order relied on an accounting by CPA Leslie O. Dawson (“Dawson”), he contends that the accounting inflated his income and failed to reflect Petitioner’s full income. 

            Petitioner opposes the motion.  She contends that the motion is not timely, Respondent does not provide the required affidavit, and Respondent fails to demonstrate new facts, law, or circumstances.  Regarding the substantive issues, she argues that Respondent does not present anything “new” or provide a sufficient explanation for failing to present the information earlier. 

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 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).

            Relief from orders, due to default or otherwise, in family-law cases may be based on the grounds generally applicable to motions to vacate under CCP section 473, or, after that deadline, only in accordance with the grounds in Fam. Code sections 2121, 2122, and 3691.  In re Marriage of Zimmerman (2 Dist. 2010) 183 Cal.App.4th 900, at 910-911.

CCP section 473(b) allows parties to set aside dismissals or defaults, or orders resulting from “equivalent” circumstances, based on mistake, inadvertence, surprise, or excusable neglect.  CCP section 473(b).  Aside from a default where defendant fails to answer in time, a party may move to set aside an order that is the “procedural equivalent of a default,” and which deprives a party of the party’s day in court.  Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618.  It therefore applies to situations such as a dismissal for failure attend a hearing or to oppose a motion to dismiss based on failure to prosecute.  Graham v. Beers (1994) 30 Cal.App.4th 1656, 1661; Peltier v. McCloud River R.R.Co. (1995) 34 Cal.App.4th 1809, 1817-1819.  This does not apply to orders where the party seeks relief because of conduct other than failing to appear on a matter, such as a failure to provide sufficient or persuasive argument regarding a matter.  See, e.g., Gotschall v. Daley (2002) 96 Cal.App.4th 479, 483-484 (noting that relief does not apply to voluntary dismissals, the result of allowing a lapse in the statute of limitations, failure to serve in a timely manner, or failure to amend a complaint in a timely manner following an order sustaining a demurrer with leave to amend); Graham v. Beers (1994) 30 Cal.App.4th 1656, 1661; Bernasconi Comm’l Real Estate v. St. Joseph’s Regional Healthcare System (1997) 57 Cal.App.4th 1078, 1082.   

“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” requires a determination as 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.  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. 

            If relief is no longer available pursuant to CCP section 473, a court may grant relief from a judgment adjudicating support or the division of property in accord with Family code section 2120, et seq. and section 3691. Family Code sections 2120, 2121; see also In re Marriage of Zimmerman (2 Dist. 2010) 183 Cal.App.4th 900, at 910-911 (Fam. Code section 2122 governs relief from judgment while Fam. Code section 3691 governs relief from support orders other than judgment); see also In re Marriage of Tavares (2007) 151 Cal.App.4th 620.  As the Marriage of Zimmerman court explained,

Aside from the six-month period specified in Code of Civil Procedure section 473, subdivision (b) for moving to set aside an order, section 3691 is the exclusive set-aside remedy. An authority stated, “After the CCP § 473(b) six-month time limit has run, the trial court may ... relieve a party from a support order ... based only on the grounds and within the time limits set forth in Fam.C. § 3690 et seq….” [Citation.]

Sections 2122 and 3691 expressly allow a party to seek relief based on fraud and perjury.  Because they allow a party to move to set aside an order based on “fraud,” a motion based on section 3691 may seek to set aside an order based on any kind of fraud, extrinsic or otherwise.  In re Marriage of Zimmerman, supra.  A motion based on fraud or perjury must be brought within six months after the party discovered, or reasonably should have discovered, the fraud or perjury.  Fam. Code section 3691(a), (b).  The Supreme Court in In re Marriage of Zimmerman explained that section 3691 supports applies to, and supports relief based on, to any type of “actual fraud,” extrinsic or otherwise.  It found section 3691 to apply to the mother’s motion to set aside child-support orders based on the father’s alleged fraud and perjury but found the motion to be untimely.

Supplemental Papers

After he filed his original RFO, Respondent obtained attorney representation and filed supplemental papers in support of the motion on November 6, 2025, 6 court days before the hearing.  These papers are procedurally defective, however.

Moving papers must be served and filed at least 16 court days before the hearing, unless otherwise allowed.  CCP section 1005(b).  Unless other specified, papers opposing a motion or demurrer must be served and filed at least 9 court days before the hearing, unless the court permits a shorter time CCP section 1005(b): CRC 3.1300(a). 

Petitioner’s opposition papers are clearly untimely.  They were filed after the possible reply papers and on the deadline for reply, long after the opposition deadline.  Petitioner filed additional opposition papers on November 6, 2025, only 5 court days before the hearing. 

Respondent’s supplemental papers are also defective.  Although they may be considered timely if they are reply papers, they are untimely as moving papers.  Even if they are considered to be timely reply papers, they raise legal and evidentiary issues beyond the scope of reply papers. 

Conclusion

In light of these issues, and the new points which the supplemental papers present, the court CONTINUES this motion to allow each party an opportunity to provide new, final, and complete moving, opposing and reply papers.  This is necessary to allow both parties full notice and opportunity to be heard and to allow the court to make a full and complete determination.  Respondent may file and serve a new brief and evidence by 16 court days before the new hearing.  Opposition must be filed and served at least 9 court days before the new hearing.  Reply must be filed and served at least 5 court days before ethe new hearing.  The court will consider those new papers as the sole briefing and evidence in place of all papers previously filed and it will not consider those papers filed up to this point.  The court is imposing this requirement in order to make the briefing, evidence, and issues before the court clear to both of the parties and the court.     

 

5. SFL082191, Goldberg Dissolution

Motion to Block Funds in Trust; Set Aside Judgment per F.C. 2122 and 1100(g-h) and Other Relief for Breach of Duty per F.C.721; Allocate Omitted Asset; Breach of Marital Contract Remedies GRANTED as a motion to set aside.  At this time, the court finds no basis for setting aside the MSA in its entirety, but instead only with respect to division of the Stock.  Accordingly, the court sets aside the MSA and judgment solely with respect to the division regarding the Stock.  This includes the valuation of the stock, the agreement to assign the Stock to Respondent, and the division of the proceeds of the Stock which Respondent had sold. 

Facts

            Petitioner filed this petition for dissolution of marriage with minor child (the “Child”) on February 11, 2019.  Respondent filed his response on March 15, 2019.

            The parties entered not a stipulation and waiver of final declaration of disclosure, filed on September 13, 2022.  The parties also entered into a Marital Settlement Agreement (“MSA”) in September 2022 and, following Respondent’s filing of a declaration regarding default or uncontested dissolution, the court entered judgment on the MSA on March 13, 2022 (the “Judgment”), with the MSA attached to, and expressly incorporated into, the Judgment.  Among other things, the MSA awarded Respondent 100% of the community interest in the stock (the “Stock”) of Simply Solar, Inc. (“Simply Solar”), a business entity of which he was employed as director of sales.     

Petitioner filed a Request for Order (“RFO”) and Motion to Block Funds in Trust; Set Aside Judgment per F.C. 2122 and 1100(g-h) and Other Relief for Breach of Duty per F.C.721; Allocate Omitted Asset; Breach of Marital Contract Remedies.  Respondent opposed the motion.  After continuances from July 2025, the court heard the motion on September 12, 2025.  The court, in its ruling continuing the motion, explained that Petitioner’s motion suffered from numerous defects to which Respondent had properly objected.  Specifically, the court noted that Petitioner had provided points and authorities or any legal basis for the motion in her moving papers; although she eventually filed a memorandum, it was two weeks after Respondent had already filed his opposition; the memorandum was improperly formatted and almost two times as long as the allowed length.  The court pointed that that as a result of these defects, Petitioner had failed to give Respondent notice of the legal grounds, applicable, authority, or analysis, for the relief requested and also   impaired the court’s ability to analyze the motion properly.  The court continued the motion to allow further briefing which it specified as follows:

Petitioner may file and serve at least 16 court days prior to the new hearing, one memorandum of points and authorities, double spaced and not exceeding 15 pages in length, in accord with the standards set forth below.  The court will not consider any request for a longer document and will not consider any document which exceeds this limit.  Respondent may file and serve at least nine court days prior to the new hearing, one new opposition brief, also subject to the applicable standards.  The court disregards, and will continue to disregard, Petitioner’s entire Memorandum filed on July 10, 2025.  The court will not allow any further reply or other additional documents and will not consider any other documents aside from those already filed and the two memorandum which the court now allows.  

Motion

            This matter is once again on calendar for Petitioner’s Request for Order and Motion to Block Funds in Trust; Set Aside Judgment per F.C. 2122 and 1100(g-h) and Other Relief for Breach of Duty per F.C.721; Allocate Omitted Asset; Breach of Marital Contract Remedies.  Petitioner filed a new Memorandum of Points and Authorities (the “New Memorandum”) in support of the motion on October 21, 2025.  She moves the court to set aside the Judgment and MSA in whole or in part due to Respondent’s alleged breach of fiduciary duty by failing to advise her of material facts regarding the proceeds of the Simply Solar stock.

            Respondent opposes the motion and filed a supplemental opposition on October 31, 2025.  He contends that he fully disclosed the full Stock and the parties agreed upon a valuation for it, Petitioner complains of mere intrinsic fraud or other problems for which relief is not available, since she may seek relief only based on extrinsic fraud; and the motion is untimely. 

The New Papers

            The parties’ new papers are in compliance with the court’s order regarding the new briefing, specifically the briefing schedule and the requirements regarding length and formatting.

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 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).

            Relief from orders, due to default or otherwise, in family-law cases may be based on the grounds generally applicable to motions to vacate under CCP section 473, or, after that deadline, only in accordance with the grounds in Fam. Code sections 2121, 2122, and 3691.  In re Marriage of Zimmerman (2 Dist. 2010) 183 Cal.App.4th 900, at 910-911.

            In proceedings to set aside pursuant to Fam.Code section 2121, the court “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 Cal.App. 4th 1334, 1345; Marriage of Varner (1997) 55 CA4th 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, fn. 11; see also Marriage of Walker, supra, 203 Cal.App. 4th at 141.

            Fam. Code section 2122 states, “The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of” those grounds which it lists.  This has been taken to provide “the exclusive grounds” for relief after the deadline of CCP section 473.  Marriage of Kieturakis (2006) 138 Cal.App. 4th 56, 87 (quoting and relying on In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684).  The grounds as set forth in section 2122 include (a) “Actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding”; (b) “perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement”; (e) “As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact”; and (f) “Failure to comply with the disclosure requirements” at Fam. Code section 2100, et seq.  An action or motion based on fraud, perjury, mistake, or failure to comply with disclosure requirements under this provision must be brought within one year after the complaining party either discovered or should have discovered the basis for relief. 

            Accordingly, under CCP section 2122, it is appropriate to set aside a stipulated order based on mistake or a spouse’s failure to disclose material information regarding property.  In Marriage of Walker (2012) 203 Cal.App.4th 137, husband mistakenly believed that wife had a community interest in his separate-property disability allowance.  The court ruled that the trial court erred in not finding mistake which supporting vacating the stipulated order regarding the allowance.  The court in Marriage of Brewer & Federici (2001) 93 Cal.App. 4th 1334, at 1346-1349, found that it was appropriate to set aside based on “mistake of fact” due to inaccurate and incomplete valuation of wife’s pension plans. 

            Prior to the current statutory law in the Family Code, set forth above, relief in proceedings under the Family Code after the expiration of CCP section 473, as with civil proceedings generally, could be available under traditional notions of extrinsic fraud.  The court in Marriage of Stevenot (1984) 154 Cal.App. 3d 1051, at 1070, explained traditional basis for relief founded upon extrinsic fraud, rather than intrinsic fraud, prior to the passage of the current provisions in the Family Code.  It stated, “[w]hen a party was represented by counsel, absent concealment, any fraud will usually be intrinsic. After separation, each party can take a position favorable to himself or herself as to the character and valuation of assets, and any failure of the other party to investigate the facts will render any fraud intrinsic rather than extrinsic.” 

            However, the current provisions, as in Fam. Code sections 2121 and 2122, expressly make it clear that once relief is no longer available under CCP section 473, relief is now available under the applicable provisions of the Family Code.  In this case, section 2122 governs because it expressly applies to judgment, stipulated or otherwise, for divisions of property.  It also expressly allows relief based not only on traditional extrinsic fraud but on any fraud, without limitation, as well as any perjury as set forth in the provision, and also unilateral or mutual mistake of law or fact.  It therefore allows relief on much broader grounds than traditional extrinsic fraud, but whereas the court’s traditional power based on extrinsic fraud has no set deadline or other requirements, it imposes specific requirements noted above and it imposes a set deadline for seeking such relief.  

            Trial courts have the authority to grant a motion based on Fam. Code section 2120, et seq., seeking relief from both the judgment and MSA incorporated therein under its general equitable authority.  Fam.Code section 2128(c); see Marriage of Brewer & Federici (2001) 93 Cal.App. 4th 1334, 1345 (no error in setting aside both the judgment and MSA under section2122(e); Marriage of Fell (1997) 55 Cal.App. 4th 1058, 1066 (court may set aside both judgment and MSA). 

Discussion

            Petitioner claims that prior to settlement negotiations, and about four months before the parties entered into the MSA, Respondent sold 15 shares of the Stock for a total of $600,000, did not disclose this, and then represented that the remaining 21 shares had a total value of $21,000.  Therefore, she contends, he hid the majority of the value of the Stock, which the parties agreed was a community asset, and it was on this basis of the false value of the community interest that Petitioner agreed to award the full value to Respondent.   Petitioner’s evidence supports these assertions, and she is persuasive regarding the fundamental facts that the Stock valuation on which the parties based the MSA was grossly incorrect, Respondent failed to disclose the significant portion of Stock which he already cashed out, and Respondent appears likely to have known all of this. 

            Respondent contends that Petitioner’s assertions amount to nothing more than intrinsic fraud, for which relief is not available.  His explanation of the traditional standard of a court’s inherent power to grant relief based on extrinsic fraud is fundamentally correct and he is persuasive that the alleged issues or wrongdoing which on which Petitioner bases her motion fall within intrinsic fraud for which such relief would not be available.  However, Respondent’s argument fails to take into account the current statutory law which, as set forth above, currently expressly allows relief based on the grounds asserted.

            Respondent also states that he complied with the disclosure requirements, setting form his valuation of the Stock at $21,000, and that Petitioner’s own statements reflected this valuation.  However, this is in of itself immaterial.  Petitioner persuasively shows that the valuation was false, and at least incorrect, and that Respondent was aware of this.  Again, perjury in these very documents as well as mutual or unilateral mistake are bases for the requested relief.  That Respondent provided the documents and gave a valuation of the Stock does not mean that there was no such mistake or perjury which would warrant relief. 

            Respondent contends that the Stock and its value have already been litigated and adjudicated but again he is unpersuasive.  The applicable Family Code provisions expressly allow the requested relief based on the asserted grounds, in a judgment, including a stipulated judgment with an MSA.

            Respondent also argues that the MSA is incorporated into the judgment and cannot be relitigated as a contract.  That may be correct, but it is subject to the relief provisions in Fam. Code section 2121 and 2122. 

            Respondent asserts that the motion is untimely because Petitioner only subpoenaed the documents with the relevant information in 2025, but she could have requested this information earlier.  Relying on In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, at 90, he contends that Petitioner could have discovered the issues earlier if she had subpoenaed the documents and information earlier.  The cited case says nothing of the sort.  There is no authority supporting Respondent’s argument here.  The evidence shows that she sought the relief here within a year after obtaining the documents supporting the motion and this satisfies the requirement for the one-year deadline. 

The court GRANTS the motion as a motion to set aside.  At this time, the court finds no basis for setting aside the MSA in its entirety, but instead only with respect to division of the Stock.  Accordingly, the court sets aside the MSA and judgment solely with respect to the division regarding the Stock.  This includes the valuation of the stock, the agreement to assign the Stock to Respondent, and the division of the proceeds of the Stock which Respondent had sold. 

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.

 

6. SFL091998, Confidential

Motion Regarding Custody and Visitation GRANTED.

Facts

            Petitioner filed this action on July 23, 2020, in order to determine his parental relationship to, and obtain visitation, custody, and other rights regarding, Respondent’s minor child (the “Child”).  In her response, Respondent acknowledged that Petitioner is the father of the Child.  The parties since then have litigated over issues regarding the Child, including custody and visitation, as well as Respondent’s requests for domestic violence restraining order (“DVRO”) protecting her and restraining Petitioner.  The action was originally in Los Angeles but was transferred to this county in September 2022.    

            On July 7, Respondent filed a request for order (“RFO”) and motion to change visitation and custody orders, including a request for temporary emergency orders.  At the hearing on that RFO on September 15, 2025, both parties appeared and presented argument.  The parties addressed the procedural details and format of the motion as well as the substantive issues.  The court continued the motion to November 14, 2025, in order to allow the parties to further brief the issue.  It ordered a supplemental moving brief to be filed by 30 days before the hearing, response/opposition to be filed by 15 days before the hearing and reply to be filed by 5 court days before the hearing.  The court also issued temporary orders regarding custody visitation, on a form FL-305 which Respondent provided, giving Respondent sole temporary physical custody and allowing Petitioner supervised visitation time.

            On July 16, 2025, Respondent filed an RFO seeking permission to take the Child out of state for a September 2025 trip to Oregon to take part in a family reunion.  The court granted that request.

Motion

            In her RFO and motion regarding custody and visitation which this court heard on September 15, 2025, and continued to November 14, 2025, Respondent asks that the emergency orders issued on July 7, 2025, remain in effect and be included in an amended DV-130 Restraining Order After Hearing.

            There is no new opposition.  Petitioner has filed no additional briefing in accord with the court’s order continuing the motion to November 14, 2025, and allowing for an opposition brief responding to the supplemental moving brief.  As a result, Petitioner has filed nothing other than the short opposition which he filed for the prior hearing. 

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”).  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).

            Petitioner’s only opposition argument, presented in his brief for the first hearing, is that Respondent presented the request on the wrong form.  He contends that she is attempting to modify custody and visitation orders issued in the Third Amended Restraining Order After Hearing on June 10, 2024 (the “Order”) and that CRC 5.92(a)(2)(A) requires such a request to be on the form DV-300 for Request to Change or End Restraining Order.  He asserts that she filed no DV-300, DV-310, or DV-305 forms as required.  His opposition makes no other arguments and does not address the substantive merits of the motion, and as noted, he has no provided a supplemental brief responding to Respondent’s new brief.  

            Respondent contends that she presented the request properly, using forms FL-300 and FL-305, pursuant to CRC 5.92 and 5.151.

            As noted, both parties rely on CRC 5.92, generally governing requests for orders under the Family Code.  Petitioner relies solely on CRC 5.92(a)(2)(A).  This states, in full,

(2) In an action under the Domestic Violence Prevention Act:

(A) While the restraining order in a Restraining Order After Hearing (Order of Protection) (form DV-130) is still in effect, Request to Change or End Restraining Order (form DV-300) must be used to ask that the court modify or terminate the orders granted in form DV-130, including any orders for child custody, child support, spousal or domestic partner support, property, or other orders.

            Respondent made her RFO, filed on July 7, 2025, on form FL-300.  This is the exact form which Petitioner argues Respondent was required to use and it is the one form which CRC 5.92(a)(2)(A), states is required.  Respondent therefore unequivocally complied with CRC 5.92 and the specific provision on which Petitioner relies in his opposition.  She moreover provided a form FL-305, which Petitioner also claims was required, and which the court used for its temporary orders at the prior hearing.

            Substantively, as in the prior hearing and on the original RFO, Respondent demonstrates that Petitioner has repeatedly failed to return the Child by the required time after visitation, has been arrested twice in the presence of the Child for DVRO violations, and left the Child waiting for over 2 hours without notice because Petitioner had turned himself in to the police due to an arrest warrant.  Respondent also demonstrates that these changes and the unpredictability are wearing on the Child.  These claims are consistent with Respondent’s prior showings and this court’s findings regarding such conduct in the past which have led this court to restrict Petitioner’s custody and visitation rights already.  In addition to the original showing, in her supplemental papers, Respondent provides a declaration detailing new evidence of additional misconduct in this regard which has occurred since the prior hearing. 

            The court, moreover, is mindful of this state’s strong public policy of protecting the interests of the children in such disputes and putting those interests ahead of the parents’ personal needs where necessary.  The Supreme Court in Moss v. Superior Court (1998) 17 Cal.4th 396, at 405, described the strong public policy of providing for the interest of children and the result that caring for the interests of the children takes priority over the parents’ financial choices and lifestyles.  See, also, In re Marriage of Leonard (2004) 119 Cal. App. 4th 546, 555 (stating, in the context of addressing child support, “[t]he duty of a parent to support the parent's child or children is a fundamental parental obligation.”). 

            Finally, the court notes that Petitioner has at no time provided any substantive opposition regarding the fundamental merits of Respondent’s RFO.  His sole opposition filed for the original hearing raised only the procedural issue addressed above and, despite the opportunity to provide additional briefing, he has not done so.  He therefore provides no argument or evidence to rebut Respondent’s persuasive assertions.     

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.