Family Law Tentative Rulings - Courtroom 22

The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact the Judicial Assistant by telephone at (707) 521-6836 by 4:00 p.m. on the day before the hearing. Any party requesting an appearance must notify all other opposing parties of their intent to appear.

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TENTATIVE RULINGS

LAW & MOTION CALENDAR

Monday, April 06, 2026,  9:30 a.m.

Courtroom 22 –Hon. Robert M. LaForge

3055 Cleveland Avenue, Santa Rosa

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The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact the department’s Judicial Assistant by telephone at (707) 521-6836 by 4:00 p.m. on the day before the hearing. Any party requesting an appearance must notify all other opposing parties of their intent to appear.

1.      25FL00184 COWHIG/BURNS DISSOLUTION

Motion for New Trial and, in the Alternative, to Vacate and Set Aside the Judgment (CCP 656, 663) DENIED.

Facts

This is a consolidated action for dissolution of marriage without minor children. Respondent in this action, Patricia Burns (“Wife”), initially filed an action for legal separation without minor children, case number SFL075648 (the “Separation Action”), on January 4, 2017.  The court entered default and judgment of legal separation (the “Separation Judgment”), upon Wife’s request, on May 5, 2017. 

No further litigation occurred until October 2024, when Petitioner in this action, Michael Cowhig (“Husband”) filed an application to appoint Husband’s daughter-in-law, Laurie Cowhig (“Laurie”), as his guardian ad litem (“GAL”) on October 28, 2024.   The GAL application was based in part on a Durable Power of Attorney (the “DPA”) which the papers demonstrated Husband had signed. This named Laurie, the wife of one of Husband’s three children, as his agent and named two of his children, including his son and prior appointee Aaron Cowhig (“Aaron”), as alternate agents.  According to the papers filed on behalf of Husband, Husband’s three adult children, Nicole Delbridge (“Nicole”), Laurie’s husband Adam Cowhig (“Adam”), and Aaron (collectively, the “Children”), and Laurie relocated Husband to Montana to live with them and they all agreed to have Laurie take the role in the DPA following Husband’s recovery from a hospitalization.  See Declaration of Brian Lanz, Attachment to Ex Parte Application/Request for Order filed July 16, 2025 (“Lanz Dec.”); Declaration of Nicole Delbridge filed February 13, 2025 in the Separation Action (“Nicole Dec.”); Declaration of Aaron Cowhig filed February 13, 2025 in the Separation Action (“Aaron Dec.”).  The court granted the application on October 30, 2024.  Husband filed a motion regarding an omitted asset and sale thereof for residential real property (the “Petaluma Property”) which he asserted the parties had jointly purchased.  Wife opposed the motion on the grounds that she had purchased the Petaluma Property with her own separate property and had only put Husband on the title as a “show of good faith.”  The Petaluma Property is the crux of the property dispute in this litigation, with Husband, through his GAL, claiming that the Petaluma Property is community property and that Husband is accordingly entitled to a share of it.  

 Husband then filed this action for dissolution of marriage without minor children (the “Dissolution Action”) on January 24, 2025.  After some further litigation, Husband filed a Request for Order (“RFO”) and Motion to Bifurcate and Terminate Marital Status (the “Bifurcation Motion”) on May 14, 2025.Subsequently, on July 1, 2025, this court ordered the two cases to be consolidated, with the Dissolution Action as the lead case. 

According to the parties, they later discovered around early July 2025 that both of their independent medical experts concluded that Husband had not been competent at the time that he executed the DPA appointing Laurie, which was the basis for the GAL appointment.  Husband accordingly filed an RFO and Motion for Laurie Cowhig to be reaffirmed as Guardian ad Litem (the “GAL Motion”) on July 16, 2025. 

For a variety of reasons, the pending Bifurcation Motion and GAL Motion were both continued to be heard together on November 14, 2025.  The court subsequently continued both motions again, to December 12, 2025, on Wife’s request.

At the hearing of December 12, 2025, both parties appeared through their attorneys, along with Laurie herself.  After argument, the court granted both the motion to reaffirm Laurie as GAL and to bifurcate and terminate marital status, ordering the marriage status terminated as of that date.

Husband passed away on January 1, 2026.  Despite this, the court will continue to refer to the filings on behalf of Husband as by “Husband” for the sake of clarity and consistency. 

Based on the orders in those motions, the court subsequently entered a status-only judgment for dissolution on January 13, 2026 (the “Dissolution Judgment”).  

Motions

In her RFO and Motion for New Trial and, in the Alternative, to Vacate and Set Aside the Judgment (CCP 656, 663), filed on February 12, 2026, Wife moves the court to set aside the status-only Dissolution Judgment or for new trial, or “other appropriate relief under CCP 656 et seq., 663 et seq.”  In Opposition and Response filed on March 13, 2026, Husband opposes the motion.Wife replies to the opposition, reiterating her requests and objecting to the opposition as untimely. 

General Applicable Authority

According to the Family Law Rules of the California Rules of Court (“CRC”) 5.2(d), and Family Code section 210, provisions applicable to civil actions generally apply to proceedings under the Family Code unless otherwise provided.  This includes the rules applicable to civil actions in the California Rules of Court and the Code of Civil Procedure (“CCP”).  See, e.g., In re Marriage of Boblitt (2014) 223 Cal.App. 4th 1004, at 1022.

Other Pending Motion to Vacate

The court notes that Wife has also filed a separate Motion to Vacate Status Judgment (CCP 473), which was originally set for September 3, 2026, but advanced to a current hearing date of July 2, 2026.  In that motion, she seeks similar relief, at least in part, on different grounds.  The court is not now considering that motion because it is not set on this calendar but finds it appropriate to note that the motion is pending. 

Request for Judicial Notice

Wife requests judicial notice of various pleadings and other documents from the court record in the parties’ actions, this Dissolution Action and the Separation Action.   Since these are part of the court records in this proceeding, judicial notice is not necessary but the documents are judicially noticeable.  The court may not, however, judicially notice the truth or correctness of any factual assertions or argument made therein.  The court grants the request with this qualification.

Timeliness of Opposition

Husband asserts that the opposition is timely because Wife did not serve file-stamped copies of the notice or moving papers, with a notice of a hearing, until March 3, 2026.  Wife argues in her reply that the response or opposition is untimely under CCP section 659a because it was not filed and served within 10 days of the initial service of the notice of intent to move for new trial. 

However, the court finds Wife’s argument to be unpersuasive here.  Wife is correct about the 10-day deadline in that provision, which Husband acknowledges.  She also is correct that the record shows that she filed the initial notice on February 13, 2026, and that the opposition was filed and served on March 13, 2026.   

Although Wife served Husband with the notice and moving papers on February 17, 2026, in her reply she admits that she did not serve Husband with file-stamped copies showing that she had actually filed the notice and moving papers or that the court had set a hearing date until March 3, 2026.  The proof of service which she filed on March 3, 2026 likewise shows that the served Husband with the filed copies of the notice and moving papers on Marh 3, 2026. Husband claims that his papers are timely based on that later date, when he was served with papers actually showing that Wife had filed the notice and motion and giving notice of the hearing.  Husband is persuasive. 

As Wife herself notes, CCP section 659a requires service and filing of opposition 10 days after service of the notice, and that this service of the notice must be after the filing.  Simply serving unfiled documents on a party, which do not show that the motion was filed and which do not give notice of a hearing, is alone not sufficient.  The moving party must serve the other party with documents giving notice that the motion had actually been filed and giving notice of the hearing.  Otherwise, the opposition party has no obligation to take action and has no notice of when the hearing will be.  Contrary to Wife’s interpretation, it is clear from the language of section 659a that the notice which triggers the 10-day deadline for opposition is service of notice that has been filed.  CCP section 659(a) states, with emphasis added, “The party intending to move for a new trial shall file … and serve upon each adverse party a notice of their intention to move for a new trial….”  CCP section 659a, referring to that filed notice, states, as Wife herself expressly points out, “Within 10 days of filing the notice, the moving party shall serve upon all other parties and file any brief and accompanying documents, including affidavits in support of the motion. The other parties shall have 10 days after that service within which to serve upon the moving party and file any opposing briefs….”  This indicates that the service which triggers the 10-day deadline for opposition to be the later service of the filed documents. 

This makes sense because if a party is simply served with unfiled moving papers, that party will have no notice that any motion had in fact been filed and will have no notice that the court has set a hearing or of the hearing date.  Absent such notice, a party can not be expected to have an obligation to file any opposition.   

Even if the court were to disregard the opposition as untimely, this would not affect the outcome of this motion.  The key facts are apparent from an examination of the record, without need to consider any additional factual points Husband presents in the evidence with the opposition. 

Discussion

Wife argues that the court must order a new trial or vacate the judgment because there was an “irregularity in the proceedings.”  This irregularity, she contends, was the court entering the Dissolution Judgment before a scheduled hearing on the Dissolution Judgment.  She claims that this deprived her of a fair hearing on the judgment and an ability to raise defects in the proposed judgment.

This is unpersuasive.  The court on December 12, 2025, as set forth above, had already granted the Bifurcation Motion to bifurcate the issue of status and to enter a status-only judgment of dissolution, which was entered as the Dissolution Judgment.  The pending hearing to which Wife refers was a hearing for a new motion by Husband to declare the judgment effective nunc pro tunc (the “Nunc Pro Tunc Motion”).  Husband filed that motion on January 8, 2026 and the court set the hearing for January 26, 2026.  In that motion, Husband sought to a determination that the Dissolution Judgment, which had already been ordered, was effective as of the date on which the court had granted the motion to bifurcate and enter the judgment, December 12, 2025.  This had absolutely no bearing whatsoever on the entry of the Dissolution Judgment itself, which the court had already ordered at the noticed hearing of December 12, 2025, with Wife present through her attorney. 

Husband’s attorney also demonstrates that following the Findings and Order After Hearing (“FOAH”) on the Bifurcation Motion, he exchanged copies of the proposed Dissolution Judgment with Wife’s attorney, who responded, on December 19, 2025, “I approve of the Judgment as written and have attached the FOAH with my signature to this email.”  Attachment to Responsive Declaration 2: 12-16.  Husband’s attorney then submitted the Dissolution Judgment to the court.  After he submitted the final, approved FOAH and judgment form to the court, but while the processing was pending, Husband passed away on January 1, 2026.  Husband’s attorney filed the Nunc Pro Tunc Motion after that in order to ensure that the Dissolution Judgment was considered to be in effect before Husband passed away.  The court notes that Wife’s attorney in fact signed the the FOAH for the motion to bifurcate and enter judgment, filed with the court, and approved it as conforming with the court order. 

The hearing on the Nunc Pro Tunc Motion was unrelated to the filing and content of the Dissolution Judgment, which the court had already ordered and which Wife’s attorney had already agreed conformed to the court’s order.  Accordingly, there was no procedural irregularity or error, or lack of notice, or any other defect to support Wife’s motion on this basis. 

Pension Plans

Wife also contends that entry of the judgment was defective due to an “[e]rror in law, occurring at the trial and excepted to by the party making the application,” as stated in CCP section 657(7).  This error, she asserts, was failure to join and include Husband’s pension plan (the “Pension.”)

As Husband argues, however, by the time of the underlying motion to bifurcate and terminate, the only property interest at issue in the litigation was the Petaluma Property.  The Pension was not at issue in the litigation, Wife had never sought joinder or any order regarding it.  Husband had retired in 2005, about 12 years before the Separation Judgment which Wife requested and obtained.  In that action and judgment, Wife had already represented that there was no community property to divide.  Her petition states that there were no known community or quasi-community assets or debts to be divided.  Her declaration for default likewise states that there are no assets or debts to be disposed of by the court.  In her request to enter default in the Separation Action, filed on February 6, 2017, she again states “there are no issues of division of community property.”  The parties were subsequently legally separated by the Separation Judgment which Wife sought, on May 5, 2017.  Wife admits in her declaration supporting this motion that she was aware of the Pension when she filed the Separation Action petition but she chose not to include it as an issue of community property because she thought that the parties had reached an understanding about being beneficiaries in their respective retirement plans.  She does not even state that Husband ever violated this alleged understanding or otherwise did anything to put the Pension into issue.  She merely claims that the parties had that agreement regarding pensions.

When Husband filed this action, after adjudication of the Separation Action, the only property interest at issue was his claim that the Petaluma Property was an omitted asset.  He served Wife with his Preliminary Declaration of Disclosure (“PDD”) on May 14, 2025, identifying his Pension as his separate property.  The motion to bifurcate and enter a status-only judgment stated that there were no community interests in any retirement plans and explained that, aside from the Petaluma Property, there were no property issues to resolve.  Wife, both in her written opposition to that motion and at the hearing on that motion, never raised the issue of the Pension or any retirement plans, or any property other than the Petaluma Property.   

In addition, as discussed above, Wife’s attorney had already signed the FOAH as confirming to the court’s order and approved the proposed form Dissolution Judgment on that basis.  

Wife claims that she “objected strenuously to entry of the status judgment as being against her agreement with” Husband, but at no point was this objection every based on the Pension.  She did object “strenuously” but solely on other grounds, including issues of the Petaluma Property, her claim that she always thought that they would remain married even after she sought legal separation, and both the appointment and authority of the GAL. 

The court finds Wife’s post-determination claims of mistake or lack of understanding neither credible nor sufficient to support this motion.  The complete failure throughout both this action and the Separation Action to mention the Pension in any way until after the entry of the Dissolution Judgment, the complete lack of any reference to an agreement regarding pensions, and the lack of any claim that Husband actually breached such an agreement, combined with the nature of the current assertions indicates to the court that this claim has no credibility.  Even if it had, the fact remains that Wife never “excepted to” nay possible error, which is a requirement for relief on this ground. 

The court also finds Wife to be judicially estopped from making this claim.  This doctrine estops a party from taking a position where that party took a different position in another judicial or quasi-judicial proceedings, the tribunal in the other proceeding adopted the other position, the positions are completely and inherently inconsistent, and the position in the other proceeding was not due to ignorance, fraud, or mistake.  State Water Resources Control Bd. Cases (2006) 136 Cal.App.4th 674, 826-827; Jogani v. Jogani (2006) 141 Cal.App.4th 158, 179; Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181.  The doctrine is intended to prevent a miscarriage of justice where parties knowingly take inconsistent positions.  Haley v. Dow Lewis Motors, Inc. (1999) 72 Cal. App. 4th 497; The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th 831, 841.  “[J]udicial estoppel is an ‘extraordinary remed[y] to be invoked when a party’s inconsistent behavior will otherwise result in a miscarriage of justice.’ [Citation.]”  Ryan Operations G.P. v. Santiam-Midwest Lumber Co. (3d Cir. 1996) 81 F.3d 355, 365, quoted and relied upon in Haley v. Dow Lewis Motors, Inc. (1999) 72 Cal. App. 4th 497, at 511.

Accordingly, there is absolutely no basis for finding an error “excepted to by” Wife.  Wife had already admitted her own Separation Action that there was no interest in the Pension at issue, since she filed the action long after Husband had retired, she claimed throughout that action that there were no community interests to adjudicate, and she admits that she knew of the Pension.  In these proceedings, the Dissolution Action, the failure to include the Pension was not an error “excepted to by” her.  Husband filed this Dissolution Action after adjudication of Wife’s own Separation Action, Husband identified the Pension but claimed it as his separate property and put only the Petaluma Property at issue, while Wife never mentioned the Pension or raised it as in issue in any way until now.  Finally, the court expressly noted in granting the motion to bifurcate and enter the status-only judgment and in the judgment, that jurisdiction over other issues is reserved pursuant to Fam.Code section 2337.

Loss of Jurisdiction Due to Husband’s Death

In her reply, Wife argues for the first time that the court should vacate the judgment because the judgment was entered after Husband’s death, depriving the court of jurisdiction to enter the judgment. 

Although her moving papers expressly mention Husband’s death as part of the factual discussion, made no effort to raise this argument in her moving papers.  Ordinarily, the court may not grant relief, or grant a motion based on grounds, not asserted in the notice of motion.  CCP section 1010; CRC 3.1110(a); see People v. America Sur. Ins. Co. (1999) 75 Cal.App.4th 719, 726; Luri v. Greenwald (2003) 107 Cal.App.4th 1119, 1124; Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1277-1278.  Courts also may refuse to consider any new evidence or arguments not raised in the opening papers, such as those raised for the first time in reply papers.  See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538; Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.  The court will not consider this argument unless the matter is continued to allow Husband an opportunity to file a short opposition responding to it. 

Should Wife wish the court to consider this argument, the court will continue the motion and allow Husband to file one opposition memorandum limited to addressing this issue, not exceeding 5 pages, and one declaration regarding the issue, also not exceeding five pages.  Wife will not be allowed to file any further briefing or evidence.  

In any case, prior to Husband’s death, the court had already granted the motion to bifurcate and enter the Dissolution Judgment.  That order was mot merely a grant of a request to enter judgment but was an order for entry of judgment and expressly stated that the status was terminated as of that date.  When this court granted that motion, it ordered entry of the Dissolution Judgment.  The court’s FOAH, which Wife’s attorney signed as conforming to the court’s order, states “The court GRANTS the motion to Bifurcate and terminates the parties[’] marital status as of December 12, 2025.”  As stated above, this was entered on December 24, 2025, so it was also entered prior to Husband’s death.  Accordingly, the status of marriage was terminated, and the judgment was effective, on the date the court ordered it, December 12, 2025.  

Conclusion

The court DENIES the motion.  The prevailing party for each of the above motions 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.