Family Law Tentative Rulings
Judge Paul J. Lozada
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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Law & Motion Tentative Rulings
January 24, 2025 at 9:30 a.m. Honorable Paul J. Lozada
TENTATIVE RULINGS
LAW & MOTION CALENDAR
Friday, January 24, 2025, 9:30 a.m.
Courtroom 22 –Hon. Paul J. Lozada
3055 Cleveland Avenue, Santa Rosa
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Meeting ID: 161-31-20396
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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 -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.
- 23FL00683- Tomkovic/Carden Dissolution
Motion to Bifurcate Marital Status requires appearances.
On 12/18/24 Respondent filed this Petion to Bifurcate Marital Status for Separate Trial. This motion is unopposed by Peition.
The Court shall Grant Petitioner’s request to Bifurcate for Separate Trial the issue of Marital Status which is not opposed by Respondent. Appearances by the parties are required to obtain jurisdictional facts and identification of all reserved issues.
It is SO ORDERED.
- 24FL00683- Ramirez Berber/Nunez Hernandez Dissolution
Motion to Compel Discovery Responses; CCP §2023.030 and FC §271 Sanctions DENIED without prejudice to Petitioner bringing a proper motion complying with applicable authority.
Facts
Petitioner filed this action for dissolution of marriage without minor children on March 29, 2024.
Motion
Petitioner moves the court to “(a) Compel Respondent to serve supplemental responses to Request for Production of Documents and Records, (b) … to reserve jurisdiction over compelling responses to Requests for Admissions, and (c) for discovery sanctions pursuant to CCP §2023.030 and FC §271.” He seeks sanctions of $2,500.
There is no opposition.
Applicable Authority
According to the Family Law Rules of the California Rules of Court, at 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 the Civil Discovery Act set forth at CCP section 2016.010, et seq. See also, In re Marriage of Boblitt (2014) 223 Cal.App. 4th 1004, at 1022.
Where a party seeks to compel responses to a demand for inspection or production under CCP § 2031.300 where the responding party has failed to respond, the moving party need only demonstrate that the discovery was served, the time to respond has expired, and the responding party failed to provide a timely response. See Leach v. Sup.Ct. (1980) 111 Cal.App.3d 902, 905-906; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411. Failure to provide a timely response waives all objections. CCP §2031.300. There is no meet-and-confer requirement or a deadline for a motion to compel response where none has been made. CCP § 2031.300.
The responding party must verify substantive responses. CCP § 2031.250. Where a response is unverified, the response is ineffective and is the equivalent of no response at all. See Appleton v Sup.Ct. (1988) 206 Cal.App.3d 632, 636.
Where a party has failed to respond on time to a request for production, the first step is not to compel production but, as with interrogatories, to compel a response. CCP § 2031.300. Where the responding party agrees to produce the documents, things, property, or information requested, but then fails to do so, the party seeking discovery may move to compel production of the promised documents, information, or things. CCP section 2031.320. As with a motion to compel for failure to respond, there is no deadline and no meet-and-confer requirement. Ibid. The moving party must show that the responding party failed to comply as agreed. CCP section 2031.320(a); see also Standon Co., Inc. v. Sup.Ct. (1990) 225 Cal.App.3d 898, 903.
When a party fails to respond in a timely manner to requests for admission (“RFAs”), the propounding party may move the court to deem the matters admitted. Code of Civil Procedure (“CCP”) § 2033.280. As with other discovery, failure to serve a timely response waives all objections. CCP § 2033.280(a). The court must grant the motion unless the responding party provides responses in substantial compliance by the time of the hearing. CCP § 2033.280(c) (the court “shall” deem the requests admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220”). As with other motions to compel after there has been no response, the obligation to meet and confer only applies on a motion to compel further responses and there is no such obligation for a motion to deem RFAs admitted. See Demyer v. Costa Mesa Mobile Home Estates (1995) 36 Cal.App.4th 393, 395; Leach v. Sup.Ct. (1980) 111 Cal.App.3d 902, 905-906; Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 411.
As the court stated in St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, at 776, “a responding party's service, prior to the hearing on the ‘deemed admitted’ motion, of substantially compliant responses, will defeat a propounding party's attempt under section 2033.280 to have the RFAs deemed admitted. [Citation.] As one court put it: ‘If the party manages to serve its responses before the hearing, the court has no discretion but to deny the motion.’ ”
When a propounding party is dissatisfied with responses to production requests, that party may move to compel further responses. Code of Civil Procedure (“CCP”) section, 2031.310. The moving party must make adequate attempts to meet and confer. Ibid. Generally, once a timely, proper motion to compel further responses has been made, the responding party has the burden to justify objections or incomplete answers. Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221.
A party moving to compel further responses to a production request, however, must demonstrate “good cause" for seeking the items. CCP section 2031.310(b)(1). This requires a showing that the items are relevant to the subject matter of the litigation and a showing of specific facts justifying discovery. Glenfed Develop. Corp. v. Sup.Ct. (1997) 53 Cal.App.4th 1113, 1117. Once the moving party demonstrates good cause, the responding party must justify objections. See Hartbrodt v. Burke (1996) 42 Cal.App.4th 168.
Similarly, when a propounding party is dissatisfied with responses to RFAs, that party may move to compel further responses. CCP section 2033.290. The moving party must make adequate attempts to meet and confer. Ibid. Generally, once a timely, proper motion to compel further responses has been made, the responding party has the burden to justify objections or incomplete answers. Coy v. Sup.Ct. (1962) 58 Cal.2d 210, 220-221. With respect to RFAs, the motion may not be used to compel admissions of facts unqualifiedly denied. Holguin v. Sup.Ct. (1972) 22 Cal.App.3d 812, 820.
Under California Rule of Court (“CRC”) 3.1345, in a motion to compel further responses, the moving party “must” provide a separate statement setting forth the items and responses in dispute verbatim along with an explanation as to why further responses are needed. CRC 3.1345(b) governs when a separate statement is not required and states, in full,
A separate statement is not required under the following circumstances:
(1) When no response has been provided to the request for discovery; or
(2) When a court has allowed the moving party to submit--in place of a separate statement--a concise outline of the discovery request and each response in dispute.
The court in Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, at 893, found that the trial court did not abuse its discretion in denying a motion to compel further responses because the separate statement failed to set forth the requests and responses verbatim. See also Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136, 1145.
Discussion
This motion is unclear and both procedurally and substantively defective. These defects are fatal to this motion as presented. The moving party fails to provide the court with necessary, required, or a clear indication of exactly what kind of motion he presents and what relief he seeks, or the underlying authority. Petitioner calls the motion a motion “to Compel Discovery Responses” in the RFP, yet the memorandum of points and authorities has the caption calling it a “Request to Compel Documents,” and all of the papers also refer to RFAs.
At the same time, Petitioner does not appear to move to compel responses to the RFAs, but instead asks the court to “reserve jurisdiction” as to RFA responses, an unclear request with no apparent authority or purpose. If Respondent has failed to respond to RFAs, Petitioner’s remedy is to compel responses. If Respondent has provided RFA responses which Petitioner contends are inadequate, Petitioner’s remedy is to compel further responses. As far as the court can tell, Petitioner has done neither and has failed to make it clear exactly what the problem is with the RFA responses.
As for the production requests, Petitioner indicates that Respondent has provided some sort of responses and some documents, but claims, vaguely, that Respondent has not fully complied. Petitioner has not made it clear whether the claimed defects lie in the written responses or the production, has not indicated what the responses are or how they may be defective, has not indicated whether Respondent had agreed to produce documents which she has not produced, or made anything else sufficiently clear for the court to understand the motion or grant any relief. Petitioner is required, on a motion to compel further responses, which this appears to be, to provide a separate statement as explained above, yet he has failed to do so. Even if he could somehow make good that failing in other ways, which this court finds he cannot, he has failed to do so. He has not even provided copies of the discovery responses, described the responses, described how the responses or production are deficient aside from a vague claim that they are deficient, or provided any other information which would allow the court to understand what is wrong with the responses or production, why, and what relief is appropriate. The motion is so vague and defective that it cannot be simply cured with additional briefing but, should Petitioner continue to seek this relief, he must completely redo the motion in its entirety in a manner that complies with the applicable authority and is sufficiently intelligible to the court. Because the defects go to the presentation of the motion and not its substantive merits, the court will allow Petitioner to revisit these issues and present an entirely new motion on these points. The request for attorney fees is related to the aforementioned defective motion and is denied.
Conclusion
The court DENIES the motion without prejudice to Petitioner bringing a proper motion complying with applicable authority.
It is SO ORDERED.
Motion for Order to Set Aside Default Entered on 1/26/24 GRANTED.
- 24FL00766- Corona-Leyva/Garcia Miranda Dissolution
Judge Paul J. Lozada recuses himself in this matter in accordance with CCP 170.1. THIS MATTER HAS BEEN REASSIGNED FOR ALL PURPOSES TO THE HONORABLE SHELLY J. AVERILL.
Motion to Compel CONTINUED to the law and motion calendar of March 7, 2025 at 9:30 a.m., in Department 23.
- 24FL00983-Kamages/MartinezDissolution
Motion for Change of Venue CONTINUED to the law and motion calendar of February 28, 2025, in Department 22 at 9:30 a.m. because there is no proof of service showing service of the motion or notice of this hearing. Prior to the new hearing, the moving party must file timely proof of service in accord with California Rule of Court 3.1300, demonstrating service of notice of the hearing.
Facts
On May 14, 2024, Petitioner filed this Petition to Determine Parental Relationship of a minor child (the “Child”) whose mother is Respondent. He alleges that he is the Child’s father and signed a declaration to that effect at the hospital. At the time that Petitioner filed this action, he was living in this county, the County of Sonoma (“Sonoma”), and he alleged that the Child was also residing in Sonoma. At the same time that he filed his petition, Petitioner filed his Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), stating that the Child was born in Santa Rosa and had been residing with him and Respondent from birth to about January 2024 at an address in Rohnert Park.
By the time that Petitioner served Respondent with the summons and petition on May 16, 2024, Respondent was residing in the County of Fresno (“Fresno”), at the same address which is her current address of record. On May 17, 2024, Petitioner filed a Request for Order (“RFO”) seeking an order that Respondent return the Child to Sonoma, stating in his declaration that on the weekend three days before he filed the instant proceeding Respondent had moved to Fresno with the Child without her agreement and the day after notifying him and other family members of the move. The hearing was set for July 8, 2024.
Respondent filed her UCCJEA declaration and an additional declaration of her mother, the Child’s grandmother, on June 6, 2024. These explain that, as Petitioner contended, Respondent had lived with the Child in Rohnert Park until May 11, 2024, when she moved to Fresno with the Child, and that she did so in part because Respondent’s family resides in Fresno.
On June 7, 2024, Respondent filed a response to the RFO, not consenting to an order that she return the Child to Sonoma but agreeing to allow Petitioner visitation with the Child at his home in Sonoma on Sundays.
The parties both appeared at the hearing on July 8, 2024. The court ordered Petitioner to be allowed visitation in Sonoma on Sundays, with Respondent bringing the Child to Sonoma on Sunday mornings and Petitioner returning the Child to Fresno on Sunday evenings. The court ordered mediation and noticed a new hearing for December 23, 2024.
Nothing further occurred in this action until November 19, 2024, when Respondent filed a Request for Order (“RFO”) and Motion for Change of Venue, set for January 24, 2025. The parties subsequently reached an agreement in mediation and the court entered an order adopting that agreement on December 6, 2024. This provides for joint legal custody but gives Respondent physical custody, allowing Petitioner specified parenting time as well as “FaceTime” periods, and it specifies the exchanges and other issues.
Motion
In her Request for Order (“RFO”) and motion, Respondent moves the court to transfer venue from this county to the Superior Court in the Fresno on the grounds that she, as the custodial parent, and the Child reside in Fresno and the child support action was filed in Fresno before Petitioner filed this action.
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).
Service and Notice
There is no proof of service showing service of the motion or notice of this hearing. There is also no other indication that Petitioner has notice. The court therefore CONTINUES the motion to allow for proper notice to Petitioner and for Respondent to file proof of service or otherwise demonstrate proper service and notice. Prior to the new hearing, the moving party must file timely proof of service in accord with California Rule of Court 3.1300, demonstrating service of notice of the hearing.
Discussion
CCP sections 395 and 396 thus generally apply to actions under the Family Code, specifically actions for marital dissolution, nullity or marriage, legal separation, and support obligations. CCP section 395(a). For marital-dissolution actions, venue is proper in any “county where either the petitioner or respondent has been a resident for three months next preceding the commencement of the proceeding….” CCP section 395(a). In a proceeding for nullity of marriage or legal separation venue is proper in the county where either the petitioner or the respondent resides at the commencement of the proceeding. Ibid. For actions regarding support obligations under Fam.Code section 3900, venue is proper in the county where the child resides.
Fam. Code section 7602 states, “The parent and child relationship extends equally to every child and to every parent, regardless of the marital status of the parents.” Fam. Code section 7620, however, specifically governs both venue and jurisdiction in California regarding actions to determine parentage and child support under the Uniform Parentage Act. Subdivision (c) sets forth the specific bases for venue and states, in pertinent part and with emphasis added,
An action under this part shall be brought in one of the following:
(1) The county in which the child resides or is found.
The other bases for venue are inapplicable here.
A challenge to venue may be waived, and an action may proceed to trial and judgment even if filed in an “improper” county unless the opposing party makes a timely objection. CCP section 396b(a); Barquis v. Merchants Collection Ass'n (1972) 7 Cal.3d 94, 115-116 (setting forth the principle in civil proceedings generally); Williams v. Sup.Ct. (2021) 71 Cal.App. 5th 101, 115 (setting forth the principle in civil proceedings generally). This standard applies also in proceedings under the Family Code. Forster v. Sup.Ct. (1992) 11 Cal.App. 4th 782, 787.
Preliminarily, there is no basis for finding waiver of the right to transfer venue. Despite a short delay in bringing this motion, Respondent otherwise engaged in no litigation in this proceeding aside from challenging Petitioner’s request to have the Child brought back to Sonoma, the hearing on which was set by the time Respondent appeared in this action. Nothing else occurred before Respondent filed this motion. Moreover, the delay was not long, amounting to only a little over five months, and Respondent filed the motion prior to the next hearing or completion of mediation.
Substantively, the motion is persuasive. Although Respondent and the Child had moved to Fresno only three days before Petitioner filed this action, the key fact is that by the time he filed this action the Child was already residing in Fresno with Respondent. According to Fam. Code section 7620, therefore, venue is proper in Fresno and not in Sonoma.
Conclusion
Should the court find there to be proper service and notice of this motion, the court will GRANT the motion. However, at this time, as explained above, the court must CONTINUE the motion because there is no proof of service or other indication of sufficient notice. The COURT will trail the requests for child custody and visitation orders made in the same pleading as the Venue change motion for the same reasons concerning service and notice explained supra.
It is SO ORDERED.
- SFL71082-Miranda Dissolutionj
Attorney for Respondent’s Motion to Withdraw is GRANTED.
On January 3, 2025, Attorney for Respondent filed this Motion to Be Relieved as Counsel. Petitioner and Respondent were properly noticed of this request. (Declaration of Attorney). This motion is unopposed by Petitioner.
Accordingly, the Motion to Be Relieved as Counsel is GRANTED. Moving party has submitted the appropriate proposed order (MC-053) which the court shall sign and file should there be no request for oral argument on the hearing date.
It is SO ORDERED.
END OF TENTATIVE RULINGS