Family Law Tentative Rulings - Courtroom 20

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.

PLEASE NOTE: If argument is requested in this matter you may appear in person or remotely via Zoom. To appear via Zoom please see the Zoom information below. 

To appear online via Zoom please use the following link:

• Join the Sonoma County Court Zoom hearing
• Passcode: 026215

To appear via Zoom by phone:

• Call: +1 669-254-5252
• Enter the Meeting ID: 161-271-2563
• Passcode: 026215

1. SCV 184661 SONOMA COUNTY v. DAVIS

Petitioner, Department of Child Support Services, County of Sonoma (“Petitioner” or “DCSS”, previously the Office of the District Attorney, Family Support Division) filed the complaint to establish existence of a parent/child relationship (“Complaint”) against Respondent Leon Davis (“Respondent”), for his mutual children with Maria Davis (“Other Parent”).

This matter is on calendar for Respondent’s motion for the Court to set aside the child support judgment entered on March 4, 1991.

There is no proof of service showing that DCSS or Other Parent were served with the hearing date or time of the motion. There is no proof that Other Parent was served with the motion at all. Accordingly, the motion is DENIED for failure to serve.

The motion is DENIED.

I.          Underlying Facts

This case was filed on September 27, 1990, alleging paternity of minor children during marriage. Respondent was personally served on November 7, 1990, and a proof of service to this effect was completed on November 20, 1990. On February 1, 1991, the court clerk rejected DCSS’s request for default, for failure to file a proof of service. On February 7, 1991, Respondent’s default was entered. Judgment was entered on March 4, 1991. On December 14, 1998, Respondent filed a motion to modify support. On January 11, 1999, Respondent did not appear at the hearing, but signed a stipulation and order with DCSS agreeing to a stay on child support while he was receiving AFDC, but for child support to resume 30 days after the benefit discontinued. The stipulation and order referenced the March 4, 1991 Judgment.

On April 5, 2001, Respondent filed a motion to set aside default under CCP § 473(b), CCP § 473.5, and equitable principles. The motion was heard on June 11, 2001, and Respondent personally appeared. Respondent objected to the matter being heard by the commissioner, and the commissioner issued a proposed ruling denying the motion for review. Respondent objected to the ruling. The commissioner’s ruling was reviewed by a judge at a hearing on July 17, 2001, and Respondent was again personally present. The judge affirmed the commissioner’s proposed order, and Respondent’s motion to set aside was denied.

Respondent filed the instant motion requesting the Court set aside the March 4, 1991 judgment. Respondent avers that service was never properly accomplished, as he did not live at the address listed on the proof of service at the time service allegedly occurred. 

II.        Governing Law

A.        CCP § 473(d)

“A judgment is void for lack of jurisdiction of the person where there is no proper service of process on or appearance by a party to the proceedings.” David B. v. Superior Court (1994) 21 Cal.App.4th 1010, 1016. “In the absence of a voluntary submission to the authority of the court, compliance with the statutes governing service of process is essential to establish th[e] court’s personal jurisdiction over a defendant.”  Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1439; see also, Code Civ. Proc. §410.50 [“the court in which an action is pending has jurisdiction over a party from the time summons is [properly] served on him…”]; Am. Express Centurion Bank v. Zara (2011) 199 Cal.App.4th 383, 387 [“[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction.”].  Thus, without valid service, the court lacks personal jurisdiction over a defendant.  Code Civ. Proc. §418.10(a)(1); see also, Ruttenberg v. Ruttenberg (1997) 53 Cal.App.4th 801, 808; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2010) § 4:413, p. 4–63.

A judgment derived from an action which was never properly served on a defendant is not merely voidable, but void. City of Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 730. “(A) judgment shown by evidence to be invalid for want of jurisdiction is a void judgment or at all events has all the attributes of a void judgment.” Id. at 732–733. Where a defendant establishes that they have not been served as mandated by the statutory scheme, the court never obtained jurisdiction over the defendant and the resulting judgment is void as violating fundamental due process. County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1227. “Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, ‘it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.’” Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 86–87, quoting Coe v. Armour Fertilizer Works (1915) 237 U.S. 413, 424. A judgment obtained through extrinsic fraud may be set aside either by filing a separate suit or by a motion made within the action in which a default resulting from the fraud is taken. Munoz v. Lopez (1969) 275 Cal.App.2d 178, 181. This motion may be made at any time provided the party acts with diligence upon learning the relevant facts. Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 37.

B.        Reconsideration

CCP §1008 reads in relevant part:

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

Code Civ. Proc., § 1008 (emphasis added)

Contentions that the court has made an error of law or refused to consider evidence is not a new fact as required for a motion under CCP § 1008. Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 724, disapproved of on other grounds by Reid v. Google, Inc. (2010) 50 Cal.4th 512. New facts mean facts which were not available to the party at the time of the hearing. In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468. To prevail on a motion for reconsideration based on new facts, a party must provide a satisfactory explanation for failing to offer the evidence in the first instance. New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212. The new facts offered must be accompanied by a showing of strong diligence in discovery and bringing the new facts, and absent a strong showing of diligence, the motion will be denied.  Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 202 disapproved of on other grounds by Shalant v. Girardi (2011) 51 Cal.4th 1164.  Failure to show new facts or law is jurisdictional.  Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 380.  Where the motion for reconsideration brings no valid new fact to the merits of the underlying motion, and merely contends a collateral matter, reconsideration will be denied. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500. “‘The name of a motion is not controlling, and, regardless of the name, a motion asking the trial court to decide the same matter previously ruled on is a motion for reconsideration under ... section 1008.’” J.W. v. Watchtower Bible & Tract Society of New York, Inc. (2018) 29 Cal.App.5th 1142, 1171; accord, Lennar Homes of California, Inc. v. Stephens (2014) 232 Cal.App.4th 673, 681 [“The motion [for clarification], despite its label, was in substance a motion for reconsideration.”].

III.       Analysis

Respondent seeks to set aside the entire case, arguing that he was never appropriately served with the summons in 1990. Respondent states that he had no knowledge of this action at the time, and that he “recently became aware the of the judgment”. He opines that the Court had no jurisdiction to enter the judgement as a result.

Respondent’s contention that he was not aware of the judgment until recently is directly contradicted by the record. Respondent entered into a stipulated order that included support in 1999, resulting from his own motion to modify support filed in 1998. This shows he has been aware of the judgment since at least 1998. This motion was not brought within a “reasonable time” after he became aware of it. Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 37. Respondent has repeatedly participated in the case since and so has waived jurisdictional arguments. Roy v. Superior Court (2005) 127 Cal.App.4th 337, 345 (in moving to quash, failure to file the motion simultaneous to a demurrer or motion to strike waived the issue). Respondent’s statements are not credible, both due to his continued participation in the case and the record reflecting his lack of awareness is untrue.

Even were there not these problems with Respondent’s motion, it is not clear that the Court could rule on it for an entirely different reason. Respondent has already filed a motion to set aside in the case under CCP § 473, CCP § 473.5 or equity principles. Given that Respondent again moves under CCP § 473 and equity principles, this is a repeat of the prior motion. In requesting that the Court rule on the same theories again, reframed by new factual contentions, the motion is properly denied as an untimely motion for reconsideration under CCP § 1008. Respondent does not provide any reason for his delay in arguing a lack of service despite his appearances in the case. There being no explanation of why the motion was so delayed, the Court lacks jurisdiction over the prior denied motion. Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 380. Therefore, the motion also must be denied on this basis.

Respondent’s motion is DENIED.

IV.       Conclusion

Respondent’s motion for set aside is DENIED.

DCSS shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 5.125.

2. 24FL01771 HAMILTON

If Petitioners have not agreed to waive the full notice period required in a motion for summary judgment, then this matter will be CONTINUED for no less than the requisite 81 days.

Alternatively, if Petitioners have agreed to waive the full notice period, then the Motion for Summary Judgment is DENIED.

Facts

            Petitioners, the grandmother and grandfather of Respondent’s minor children (the “Children”), filed this petition to obtain an order allowing them to have visitation rights with the Children.  Petitioners’ Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) states that the other parent, Ryan Hamilton (“Ryan”), is deceased.

            Respondent filed a Motion for Disqualification of Counsel and Firm Anderson Ziegler and Dismiss Action and Sanctions Under Family Code Section 271 on October 11, 2024.  This sought disqualification of Petitioners’ attorney and it sought dismissal on the basis that Petitioners had failed to meet their burden for their claims.  It also sought monetary sanctions.  At the original hearing on the motion on November 1, 2024, the court decided to continue the motion to consider additional briefs.  At the final hearing on November 15, 2024, the court denied the motion.  It found no basis for disqualification at that time and found that Respondent had failed to present legal or factual bases for dismissal.  Regarding dismissal, the court explained that Respondent was making factual assertions going to the claims presented in the petition, outside the scope of the pleadings, which were to be resolved in the trial on the petition.  The court also found that the motion was in essence a defective demurrer improperly brought in a family proceeding, and that Respondent had failed to demonstrate the grounds for a family-law motion to quash pursuant to California Rules of Court 5.63 and 5.74.

            The court held a hearing on December 5, 2024, after which it entered a ruling, filed January 14, 2025 (the “January 2025 Order”), giving Petitioners visitation time and making related orders.

            Respondent sought a writ of mandate from the court of appeal, asking it to set aside the January 2025 Order.  The court of appeal issued a writ of mandate on February 26, 2025 to set aside the January 25 Order (the “Appellate Order”).  This court ordered the January 2025 Order to be vacated in light of the Appellate Order from the court of appeal. 

            The court held a hearing on March 17, 2025, at which it addressed with the parties the issue of scheduling an evidentiary hearing along with the nature and parameters of the hearing.  As a result, on March 19, 2025, the court set a half-day trial in the matter for May 8, 2025.   The parties subsequently filed briefs, exhibits, and motions in limine for that trial.  The trial commenced as scheduled on May 8, 2025, at which time the court heard and ruled on the motions in limine, among other things.  The court also noted that the parties stipulated that mother, i.e., Respondent, “is a fit parent.”  It also ruled on a request for judicial notice, the parties gave oral argument, and examination of one witness, Rachel Flores (“Flores”), took place.  The court then continued the matter to June 30, 2025 for a variety of reasons including issues of service and availability. 

            Respondent subsequently filed a new motion to disqualify Petitioner’s counsel based on new information regarding thew witness Flores, who had worked for the firm of Respondent’s attorney during the representation of Respondent, but who left to work at the firm of Petitioners’ attorney and became involved in the work on this action.  The court granted the motion after a hearing on May 30, 2025, but shortly before, on May 27, 2025, Petitioner’s original attorney substituted out and a new attorney with a different firm, Carla Hernandez Castillo, substituted in.  At the hearing of May 30, 2025, the court also declared a mistrial because of the issues regarding Flores.  

            As a result of the issues raised at the trial conference on June 20, 2025, the court vacated the trial dates, set the matter for a motion regarding mediation, and rescheduled it for a March 2026 hearing on trial status with trial set for April 2026.    

            Petitioners electronically served Respondent on February 24, 2026, with a Request to Drop Hearing, asking the court to drop the scheduled trial dates.  Petitioners asserted that no trial was needed because they were “withdrawing their motion.”  This was not actually filed until March 2, 2026, and the filing was vacated the following day.  On February 24, 2026, meanwhile, Respondent filed an Objection to Dropping Trial, contending that the matter had already been set and continued, causing delays, and that she needs a final determination of the matter, specifically Petitioners’ request for visitation.              

            On March 56, 2026, the court held a hearing with the parties in which they addressed Petitioners’ pending request to drop the court trial and to withdraw their pending memorandum of points and authorities.  The court vacated the pending April 2026 trial dates and set the matter for a hearing of June 5, 2026, to address the request to drop the court trial. 

            Petitioners eventually filed a request to drop the trial, contending that the trial dates had already been dropped, they had tried to resolve the matter through a stipulation, and there was no need to reset trial because they wished to avoid further unnecessary litigation.  Respondent opposed the motion, asserting that she is entitled to adjudication and resolving the matter, instead of leaving the petition pending with no resolution in sight.  The court denied the motion after the hearing of June 5, 2026. 

Motion

            On June 5, 2026, Respondent filed her Request for Order (“RFO”) and Motion for Summary Judgment and selected a hearing date of August 21, 2026.  On June 15, 2026, Respondent served her moving papers on Petitioners by electronic service.

            In RFO, Respondent moves the court to enter summary judgment in her favor on the petition.  She contends that she is entitled to judgment in her favor because of the Appellate Order, this court’s subsequent findings and order that Respondent is a fit mother (the “February 2025 Order”), and Petitioners’ own stipulation in open court that Respondent is a fit mother.  She also contends that there is no dispute that she has made the Children available for visitation with Petitioners. 

            Petitioners oppose the motion, arguing that Respondent cannot show that they could never be entitled to an order for visitation, the Appellate Order does not adjudicate the issues in this petition, and there is no legal basis for finding Respondent to be immune from any visitation order simply because she may be a fit parent now and currently allows some visitation time.  They note that the Appellate Order is limited to the determination that there were insufficient factual findings to support the order and does not bar Petitioners from continuing to seek the type of relief requested.  

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).          

Any party may move for summary judgment or summary adjudication.  Code of Civil Procedure (“CCP”) section 437c(a), (f).  A party is entitled to summary judgment if demonstrating “that the action has no merit or that there is no defense to the action or proceeding.”  CCP section 437c(a).  For summary adjudication, the “party” may seek adjudication of, among others, one or more causes of action, affirmative defenses, claims for damages, or issues of duty, or that a party did or did not owe a duty.  CCP section 437c(f)(1).  According to CCP section 437c(b)(4), a “reply shall not include any new evidentiary matter, additional material facts, or separate statement submitted with the reply and not presented in the moving papers or opposing papers.”

CCP section 437c(a)(2) requires “[n]otice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing… If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 81-day period of notice shall be increased by two court days.” The court has no power to shorten the notice period without the parties’ consent.  McMahon v. Sup.Ct. (2003) 106 Cal.App.4th 112, 116. 

When a defendant moves for summary judgment, it has the burden of first making a prima facie showing that plaintiffs cannot establish at least one element of any cause of action for summary judgment, or there is a complete defense to every cause of action.  CCP §437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. 

A defendant can show that an element cannot be established only if its undisputed facts negate plaintiff’s allegations as a matter of law and would make it impossible for plaintiff to show a prima facie case.  Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597. 

Once the moving party has met its burden, the party opposing summary judgment or summary adjudication has the burden of demonstrating that there is a triable material issue of fact.  CCP section 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.  The opposing party must merely make a prima facie showing that there is such a triable issue.  Ibid.

Inferences from circumstantial evidence can create a triable issue, as long as they are not based on speculation or surmise.  Joseph E. DiLoreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161; Aguilar v. Atlantic Richfield Corp. (2000) 78 Cal.App.4th 79, 117.  These inferences must be “more likely than not.” Aguilar, 117; Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 487.  There is also a policy to liberally construe the opposition’s evidence and strictly construe the evidence of the moving party.  D’Amico v. Bd. of Medical Examiners (1974) 11 Cal.3d 1, 21; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.

Separate Statements and Facts

            Respondent presents three facts in her separate statement.  The evidence she cites establishes all three.  In fact 1, she shows, based on a court transcript, that Petitioners stipulated before the court that she is a “fit parent.”  In fact 2, Respondent shows that on February 26, 2025, the court of appeal issued an alternative writ of mandate, finding that the January 2025 Order unconstitutionally infringed on Respondent’s fundamental parenting rights.  In fact 3, Respondent shows that she has been voluntarily providing vitiation to Petitioners, the grandparents of the Children.  This is based on her declaration, in which she states that she has continually allowed visitation with Petitioners, she invited Petitioners to join her and the Children for Christmas in December 2023; in 2024, she enabled visits with Petitioners in January, twice in March, twice in September, and once in October at the Petitioners’ request.  She also explains that at other times, visits did not occur Petitioners themselves declined or were unable to visit, or because the Children were ill. 

            Petitioners respond that facts 1-2 are undisputed but assert that fact 2 is immaterial to this motion. 

            Petitioners claim that fact 3, however, is disputed.  They note that in Respondent’s own declaration, she states that she only voluntarily offered a visit once in the time starting December 2023 and that all of the other times, visits occurred at the Petitioners’ request.  Ultimately, they fail to demonstrate a true dispute, since the undisputed evidence clearly shows that Respondent has agreed to, and in fact facilitated, visitations several times.  The fact that most of these times occurred at Petitioners’ request does not change the fact that Respondent agreed voluntarily.  Nothing shows that Respondent was trying to refuse or that any effort to persuade or force her to agree was necessary.  The evidence also shows that, in addition to the one visitation which actually occurred on Respondent’s offer without a request from Petitioners, she on other occasions offered visitation or tried to schedule visitation. 

Discussion

Untimely Service of Respondent’s RFO

Respondent’s RFO was served on Petitioners less than the required 81 days prior to the hearing.  Petitioners did not object to the timing of the service of the RFO; however, it is not clear to the court that Petitioners agreed to a shortened timeline or waived the full notice period.  The 81-day notice period is mandatory, and the court cannot waive it absent an agreement of the parties or waiver by the Petitioners.  If there is no agreement or waiver, then the hearing will be continued for the full 81 days plus time for service. Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.

In the event the Petitioners did agree to shortened service or waived the full notice period, then the Court continues its discussion of Respondent’s RFO.

Petitions Pursuant to Fam. Code section 3102

Petitioners have filed this petition seeking visitation rights pursuant to Fam.Code section 3102.  This states, in pertinent part,

(a) If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child's minority upon a finding that the visitation would be in the best interest of the minor child.

(b) In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order.

Based on the U.S. Supreme Court decision in Troxel v. Granville (2000) 530 U.S. 57, courts have restricted the rights of petitioners under this and similar statute.  Hoag v. Diedjomahor (2011) 200 Cal.App.4th 1008, 1015 (discussing the history of court limitations on such statutes).  

            As the Supreme Court explained in In re Marriage of Harris (2004) 34 Cal.4th 210, at 219, “[g]randparents’ rights to court-ordered visitation with their grandchildren are purely statutory. [Citation.]”  See also Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 1180 (quoting and relying on In re Marriage of Harris).  “Courts have construed [Fam. Code] section 3102 as requiring a rebuttable presumption in favor of a fit surviving parent's decision that grandparent visitation would not be in the best interest of the child.”  Rich, supra; see also Stuard v. Stuard (2016) 244 Cal.App.4th 768, at 778 (also setting forth the rebuttable presumption).  Accordingly, “[t]o overcome the presumption that a fit parent will act in the best interest of the grandchild, a grandparent has the burden of proof and must show, by clear and convincing evidence, that denial of visitation is not in the best interest of the grandchild, i.e., denial of visitation would be detrimental to the grandchild.”  Rich, supra; see also Ian J. v. Peter M. (2013) 213 Cal.App.4th 189 (quoting and relying on Rich).  At the same time,. Although there is a rebuttable presumption in favor of a fit parent’s decisions regarding visitation, ‘by making this presumption rebuttable, the statutory scheme recognizes “the importance of family ties and the value of a relationship between grandparents and grandchildren.” [Citation.]’  Stuard, supra.   

Effect of the Appellate Order

            Respondent in part argues that the Appellate Order controls the outcome of this action and requires the court to grant judgment in her favor.  Respondents counter that the Appellate Order was limited to the propriety of the January 2025 Order giving them visitation rights, it was based on the lack of required findings supporting that order, and it does not compel any particular outcome regarding the rights asserted in the petition. 

            Petitioners are persuasive.  The Appellate Order found that this court, in issuing the January 2025 Order, had “applied” Fam. Code section 3102 incorrectly and “in a manner that unconstitutionally infringed on petitioner’s fundamental parenting rights,” citing Toxel, supra, and other case law regarding the constitutional protections for parents’ rights and limitations on others to obtain visitation privileges against a parent’s will.  It noted that the January 2025 Order lacked required factual findings necessary for supporting the order.  The court made absolutely no decision about the potential of Petitioners to obtain an order for visitation or Respondent’s fitness as a parent, and made no other determination as to the validity of the petition itself or whether Petitioners could at some point obtain such an order given the appropriate findings to support it.  Indeed, any such issues were beyond the scope of the matter before the court of appeal, which was limited to whether the January 2025 Order was based on sufficient factual findings to support it.  The fact that the trial court failed to make such findings at that time has no effect on whether it may subsequently make such findings. 

            Respondent also contends that the petition must fail, with prejudice, because the parties have stipulated that she is a “fit” parent and has allowed visitation with Petitioners.  Petitioners contend that Respondent’s argument is contrary to the nature of the request and that Respondent’s presented facts do not compel a finding in her favor, much less a finding with prejudice barring Petitioners from seeking such relief in the future.

            Once again, Petitioners are persuasive that Respondent has not met the burden required for summary judgment.  First, Respondent has not demonstrated that her facts necessarily defeat every element of a claim for visitation rights under section 3102 as a matter of law.  Second, the very nature of this petition, as is frequently the case in family law proceedings, is continuing and ongoing, as opposed to a discrete cause of action amenable to summary adjudication.

            As noted above, section 3102 merely grants grandparents, among others, a right to seek visitation where one of the parents of the children is deceased.  It sets forth the basic elements necessary to assert this right in subdivision (a), and these are, when “either parent…is deceased,” and the petitioners are among the listed class of those who may assert this right, which includes grandparents.  Should they meet those two elements, they “may be granted reasonable visitation… upon a finding that the visitation would be in the best interest of the minor child.”  Those are the only elements necessary to pursue such a claim.         

            Respondent relies on only two facts, neither of which determines any element against the petition as a matter of law.  She shows that the parties have stipulated that she is a “fit” parent and she has allowed visitation with Petitioners.  Neither of these facts negates either of the basic elements of the right under the statute: that the other parent is deceased and that the petitioners be in the class of people who may assert the right.  In fact, there is no dispute, as the court history clearly shows, that Petitioners meet these two fundamental elements: the other parent, father, is deceased, and Petitioners are the grandparents of the Children, expressly members of the class set forth in section 3102.   Petitioners’ facts also are not dispositive, as a matter of law, of the analysis required to determine if the court should issue an order granting reasonable visitation.  The court must make determinations based on the best interests of the children and the totality of circumstances regarding the surviving parent and those seeking visitation.  This is a multi-faceted determination which rests on no single fact or set of specific facts.  The fact that Respondent is a “fit parent” is clearly one factor for a court to consider but is by no means dispositive.  In fact, as set forth above, the controlling authority expressly makes it clear that those who may bring a petition under section 3102 may do so, and may obtain a visitation order requested, even if the surviving parent is fit.  As explained above, the cases expressly state that there is a “rebuttable presumption” in favor of the decisions of a “fit parent” on such petitions, which necessarily means that a party may rebut that presumption and obtain an order pursuant to section 3102 even when the surviving parent is “fit.”   To repeat the key language set forth above and with emphasis added,  Rich, supra, stated that there is “a rebuttable presumption in favor of a fit surviving parent's decision that grandparent visitation would not be in the best interest of the child” and petitioners under section 3102 may “overcome the presumption that a fit parent will act in the best interest of the grandchild….”  Similarly, nothing indicates that Petitioners are as a matter of law foreclosed from obtaining the desired visitation order merely because Respondent has agreed to some visitation. 

            Finally, Petitioners are also correct that the nature of the claim and rights under section 3102 is ongoing, rather than a discrete cause of action for a discrete interest or damages.  Section 3102 allows the listed class of parties to seek an order allowing reasonable visitation whenever it is in the best interest of the children, an open-ended situation.  This is consistent with many family-law proceedings in general, where courts have continuing jurisdiction, and parties have continuing rights, over various issues such as support, custody, and visitation.   It is well-established that, in contrast to other issues or other types of litigation, judgments in family-law proceedings are not “final” and does not have res judicata effect as to child custody, visitation, or support because by law such orders are modifiable at any time during the minority of the children.  Marriage of Goodarzirad (1986) 185 Cal.App. 3d 1020, 1027; Marriage of Kreiss (2004) 122 Cal.App. 4th 1082, 1084-1085; Anne H. v. Michael B. (2016) 1 Cal.App. 5th 488, 492, 497-498.  According to Fam. Code section 3022, “[t]he court may, during the pendency of a proceeding or at any time thereafter, make an order for the custody of a child during minority that seems necessary or proper.”  Emphasis added.  This allows a court to modify such an order at any time, including after judgment, even a default judgment.  Marriage of Olson (2015) 238 Cal.App. 4th 1458, 1460.  CRC 5.92 also expressly provides for motions to terminate or alter custody, support, or visitation orders, including “permanent” ones.  Similarly, the court in Marriage of Wells (1988) 206 Cal.App. 3d 1434, at 1439, explained that courts may alter support awards based on changed circumstances and that, trial courts may sua sponte reserve jurisdiction over spousal support in a default case even though support was not requested in the petition).  This is seen also in actions under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), in which Fam. Code section 3422 governs continuing jurisdiction of the courts of this state.  It expressly states that a court which has made a child-custody determination retains continuing jurisdiction over that determination until it determines that the child and a parent no longer have a significant connection with this state, along with other factors, or the child and parents no longer reside in the state. 

            Respondent, accordingly, has failed to demonstrate any basis for an order granting summary judgment in her favor, and in particular for any order which would be permanent and with “prejudice” as Respondent expressly seeks.  She explains that Petitioners have indicated that they want to dismiss this action, without prejudice to them later reasserting such a claim should circumstances warrant and support such a request.  She expressly states in this motion that she seeks summary judgment as a final decision on this claim so that Petitioners may not again seek a visitation order.  However, as explained above, the law is entirely to the contrary and there is no basis for a final order, or any bar to Petitioners seeking to dismiss their petition without prejudice. 

            The court DENIES the motion.  

Conclusion

            If Petitioners have not agreed to waive the full notice period required in a motion for summary judgment, then this matter will be CONTINUED for no less than the requisite 81 days.

            Alternatively, if Petitioners have agreed to waive the full notice period, then the Motion for Summary Judgment is DENIED.

            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 5.125.

3. 24FL02587 NEDOROSKI/SCHEMPER DISSOLUTION

Motion to Set Aside Default and Prohibit Move of Children CONTINUED to the law and motion calendar of _October 02, 2026, in Department 20  at 9:30 a.m. unless Respondent resolves the issues of service and a proposed responsive pleading as explained below.  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. 

            Should Respondent resolve the issues noted, the court will reach the merits and GRANT the motion. 

Facts

            Petitioner filed this action for marital dissolution with minor children (the “Children”) on December 24, 2024 and she filed a first amended petition (“FAP”) on January 7, 2025.  She field her first proof of service for the summons and petition, although titled “amended,” on January 14, 2026, showing that she served Respondent personally on January 7, 2025.  She requested and obtained the default of Respondent on January 14, 2026 as well.

            On June 24, 2026, this court granted Respondent’s request for temporary emergency orders preventing transferal of the Children’s records to a new school without agreement of the parties or a court order.

Motion

            Respondent moves the court to set aside the default and to prevent Petitioner from moving with the Children to Siskiyou County.  He contends that he had originally agreed to a default because he believed that the parties had an agreement regarding terms for the judgment but after Petitioner obtained the default it appeared to him that she was attempting to change the terms and will now seek to enter a judgment with terms different from those to which he agreed.   He also seeks an order preventing Petitioner from taking the Children to Siskiyou County. 

            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”).  In re Marriage of Zimmerman (2 Dist. 2010) 183 Cal.App.4th 900, 910-911.

            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 (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.]

An order setting aside the default is discretionary where based on mistake, inadvertence, surprise, or excusable neglect.  CCP section 473(b).  There is 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.  This provision is remedial in its nature and is to be liberally construed so as to allow parties to present the merits of their cases.  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 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.  Excusable neglect by attorneys includes situations where, despite reasonable supervision, an attorney’s secretary misfiled papers or failed to enter an appearance date.  Elston v. City of Turlock (1985) 38 Cal.3d 227, 234; Alderman v. Jacobs (1954) 128 Cal.App.2d 273.

            Fam. Code section 2122 sets forth the various bases for relief pursuant to that provision.  Aside from stipulated judgments, not applicable here, the grounds include actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding; 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; duress; and mental incapacity.

            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.

            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 section 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).

Service and Notice

            Respondent filed a proof of service showing service of the request for order (“RFO”) and related documents on Petitioner, by mail and e-mail, on June 25, 2026.  He also filed a separate proof of service for the temporary orders.  However, Respondent filed several documents during this time, and it is unclear if the RFO mentioned is the RFO and motion set for this hearing.  Respondent must clarify this and demonstrate service of this RFO and notice of this hearing.  Unless Respondent fails to do so, the court will CONTINUE the motion with the requirement that proof of service be filed at least 5 court days prior to the hearing.  California Rule of Court (“CRC”) 3.1300(c).

Discussion

Default

Respondent filed this motion less than 6 months after entry of the default.  Accordingly, relief is available not only through Fam. Code section 2021 and 2022 but through standard civil grounds for setting aside defaults, including CCP section 473.  Respondent demonstrates in his declarations that he had allowed the default to be entered because he had reached an agreement with Petitioner about the terms of the judgment.  Petitioner obtained the default but has not entered judgment, the court having rejected the original filing effort.  He explains that the agreement included terms stating that neither parent may move the Children from their current school, Sebastopol Charter School, without written consent of both, but that Petitioner has now moved to Siskiyou County and is taking the Children with her there and taking them out of the school.  This shows that she is no longer complying with the agreement as Respondent understood it.  The court record also supports Respondent’s explanation, since he prepared his preliminary declaration of disclosure (“PDD”) and signed it on February 18, 2025, and also entered into a stipulation with Petitioner regarding final declarations.  Petitioner then delayed entering the default by almost a year. 

            This is sufficient to show reasonable mistake and fraud in accordance with the standards set forth above.  However, Respondent has not provided a proposed responsive pleading and must do so.  In the event that the court finds proper service and notice, and Respondent provides a proposed responsive pleading, the court will GRANT the motion as to setting aside the default.  Otherwise, the court will CONTINUE the motion.    

Prohibition on Moving Away

            Respondent also seeks an order barring Respondent from relocating the Children to Siskiyou County.  He demonstrates that the parties had agreed that the Children would remain in this county and at their current school absent written agreement of both, but that Respondent has now decided to relocate them to Siskiyou County.   

Fam. Code section 7501 gives a parent with sole custody of a child the right to change the child’s residence subject to the court’s authority to restrain removal which would prejudice the rights or welfare of the child.  As the Supreme Court explained in In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, at 957, this gives a parent with sole custody a presumptive but not an absolute right to move away, expressly allowing the court to restrict that right should it prejudice the child’s welfare. 

Moreover, ‘the trial court has “the widest discretion to choose a parenting plan that is in the best interest of the child.” [Citation.]  It must look to all the circumstances bearing on the best interest of the minor child.  [Citation.]’  In re Marriage of Burgess (1996) 13 Cal.4th 25, 31-32. 

            At this point, there has been no custody determination and Respondent demonstrates that the parties had agreed that the Children would remain in their current location and school until further agreement.  The court finds that under these circumstances, Petitioner must not relocate the Children until there has been a determination of these issues. 

            In the event that the court reaches the merits of the motion, it will GRANT the motion on this point. 

Conclusion

            The court will CONTINUE the motion unless Respondent resolves the issues noted above. 

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 5.125.

4. 26FL00188 JONES v. PLA

The Motion to be relieved as counsel is GRANTED.  Mr. Conway is directed to prepare and order consistent with the Court’s ruling.