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. 24FL02550 County of Sonoma v. Dunn

Motion to Set Aside GRANTED.

Facts

           Petitioner County of Sonoma Department of Child Support Services (“Petitioner” or “DCSS”) filed this action to establish Respondent as the father of a minor child (the “Child”) and to seek payment of child support for the Child.  Respondent failed to appear by October 15, 2025, so Petitioner obtained entry of default on that day.  It obtained a judgment against Respondent the following day.

Motion

            Petitioner moves the court to set aside the default and judgment which it obtained against Respondent.  It contends that it has discovered that the default papers which it sent to Respondent contained an error regarding the planned default date because it had informed Respondent that it would allow him until December 10, 2025 before it sought entry of default when in fact it had intended the deadline to be October 10, 2025, and it obtained the default based on its intended deadline.  It discovered this error after the entry of default when Respondent’s attorney contacted it after receiving notice of the default and judgment.

 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, 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. 

CCP section 473(b) allows parties to move the court to set aside dismissals or defaults.  This motion must normally be made within a reasonable time, not to exceed 6 months from the date the order was entered.  CCP section 473(b).  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 where based on mistake, inadvertence, surprise, or excusable neglect.  Id.  There is also a policy in favor of hearing cases on their merits and the motion to vacate should be granted if the moving party shows a credible, excusable explanation.  Elston v. City of Turlock (1985) 38 Cal.3d 227.  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. 

In addition to relief pursuant to CCP §473(b), the court also has inherent equitable power to set aside a judgment on the basis of extrinsic fraud or mistake.  Olivera v. Grace (1942) 19 Cal.2d 570, 576.  A court has discretion to treat a motion brought under §473 as one for equitable relief under the court’s inherent powers.  Rappleyea v. Campbell (1994) 8 Cal.4th 975, 982.  In Rappleyea, the Supreme Court reversed an appellate court decision affirming an order denying a motion for relief under CCP §473.  The Supreme Court noted that although relief was not available under CCP §473 because the motion was untimely, relief was still available, and appropriate, based on the court’s inherent equitable power to set aside a judgment on the basis of extrinsic fraud or mistake.

There need be no actual “fraud” or “mistake.”  Marriage of Park (1980) 27 Cal.3d 337, 342.  The key is whether there are circumstances extrinsic to the lawsuit itself that deprive the party of a fair hearing.  Estate of Sanders v. Sutton (1985) 40 Cal.3d 607, 614.  As the Supreme Court explained in In re Marriage of Modnick (1983) 33 Cal.3d 897, at 905, ‘[e]xtrinsic fraud is a broad concept that “tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” ’ See also Estate of Saunders (quoting and relying on In re Marriage of Modnick).  This may cover such circumstances as where the opponent’s deception or other acts prevented the party from presenting his case or knowing of the lawsuit, where the party relied on another to defend the action, where the party was mentally incompetent, or in other situations where excusable mistake and neglect result in an unfair judgment without a fair adversary proceeding.  Kulchar v. Kulchar (1969) 1 Cal.3d 467, at 471-472.  The court in Weitz v. Yankosky (1966) 63 Cal.2d 849, at 855-856, for example, found it appropriate to set aside a default based on the court’s equitable powers where the defendant had reasonably relied on an insurance company to defend him, even though more than a year had passed since the entry of default.  In another example, the court in County of San Diego v Gorham (2010) 186 Cal.App.4th 1215, at 1229-1230, ruled that the trial court was required to use its equitable power to set aside a default judgment based on a false proof of service.

            Although this motion is somewhat unusual in that the party seeking to set aside the default is the party who obtained the default in its favor, the facts and circumstances warrant the requested relief.  If Respondent himself were to move the court to set aside the default, such a motion would likely be persuasive based on surprise and extrinsic fraud or mistake, given that Petitioner had, by its own admission, incorrectly told Respondent that it would not seek a default before December 10, 2025, when in fact it did so in October 2025.  The facts that Petitioner itself admits this problem and seeks to rectify it makes the matter all the more clear. 

            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.

2. SFL093094 Morrison/Reichert dissolution

The Motion of Danelle Jacobs to Be Relieved as Minor’s Counsel is GRANTED.  The proposed order submitted by Danelle Jacobs shall be entered.

3. 23FL00183 Acosta lora/Guadalupe Cuevas dissolution

The Motion of Morna G. Challoner to be Relived as Counsel for Respondent is GRANTED. The proposed order submitted by Morna G. Challoner shall be entered.