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

Friday,  February 13, 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. 24FL02577 ABRCROMBIE  v. HABER

TENTATIVE RULING:

Motion to Set Aside June 12 order per 473(b) DENIED.

Facts

Petitioner commenced this matter regarding domestic violence without minor children when she filed a Request for Domestic Violence Restraining Order (“DVRO”) against Respondent on December 20, 2024.  Respondent, with attorney James Carroll (“Carroll”) representing her, filed a response on January 10, 2025.  The court denied. the request for temporary DVRO and subsequently held an evidentiary hearing on the request on June 12, 2025, at which both parties and their respective attorneys were present, presented evidence, conducted witness examination, and presented arguments.  The respective attorneys for both parties acted in behalf of their clients throughout the hearing.  Following the hearing, the court granted the request and issued a three-year DVRO protecting Petitioner and restraining Respondent. 

Respondent, acting on her own as a self-represented litigant, filed an appeal on June 16, 2025.  Attorney Caroll filed a substitution of attorney on June 20, 2025, showing that Respondent and he had agreed to him withdrawing from the representation and leaving Respondent self-represented.  The form shows that Carroll and Respondent had signed it on June 19, 2025.  The court of appeal issued a notice of default on the appeal on July 17, 2025. 

Again acting as a self-represented litigant, Respondent also filed ex parte applications challenging the DVRO.  This court denied the ex parte applications to terminate the DVRO.  On July 11, 2025, Respondent also filed a motion to reconsider the DVRO ruling and the court set the matter for a hearing on that motion.  The court in its order setting the hearing expressly explained that Respondent, the moving party, “must file a memorandum of points and authorities upon which she relies” to give notice to the court and other party “of the nature and substance of the present request.”

In her motion for reconsideration, Respondent asserted that ‘new evidence… shows my retained attorney admitted he “kept working on my case out of empathy” after I terminated him.  I was never advised that he ceased representation or never turned in key evidence.  I was left to navigate trial believing I had counsel when I did not.”  After Petitioner filed opposition to the motion, Respondent filed a memorandum in support of the opposition, which this court considered to be a reply under the circumstances.  For the first time relying in Code of Civil Procedure (“CCP”) section 473(d), she asserted that the order was void because of “attorney abandonment” preventing a meaningful opportunity to be heard.  In the end, she asserts that her attorney, Carroll, had failed to handle the hearing properly because Petitioner’s attorney “controlled approximately 91% of attorney participation,” Carroll made no objections on day 1 of Petitioner’s testimony and failed to cross-examine Petitioner, and conducted “[o]nly a few minutes of redirect.”  Respondent subsequently filed an additional, untimely set of reply papers four calendar days before the hearing.  

The court denied the motion for reconsideration, finding that Respondent had failed to demonstrate any basis for relief and that the motion was defective both procedurally and substantively.  The court explained that, aside from the procedural defects, it was substantively wholly unpersuasive and lacking in support.  Respondent had provided nothing which was “new” within the meaning of CCP section 1008, but only evidence which was already in her possession and known to her previously.  It also explained that Respondent incorrectly relied on relief for void judgments pursuant to CCP section 473(d).  It stated that nothing in the record showed the order to void and that the grounds cited, insufficient representation or “abandonment” by her attorney were not apparent on the face and were based on discretionary issues.  The court that only discretionary relief under CCP section 473(b) was potentially available on this basis and that the evidence presented in any case failed to show insufficient representation or “abandonment” by her attorney.  The evidence, the court found, merely showed that her attorney continued to represent her out of empathy for her while the record of the proceedings clearly demonstrated that Carroll, the attorney, acted at the hearing on her behalf and fully participated.  The record further showed that Carroll withdrew only upon notice, and Respondent’s own written agreement, and after she filed her own appeal on her own, without Carroll.  The court added that even if relief based upon an attorney affidavit of fault had been appropriate, Respondent provided no such affidavit and did not address the standards for such relief. 

Motion

In her Request for Order (“RFO”) and Motion to Set Aside June 12 order per 473(b), Respondent once again moves the court to set aside the DVRO.  She again asserts that her then-attorney, Carroll, had spent insufficient time preparing for the hearing and failed to use the evidence which she provided to him, stipulated to some of Petitioner’s exhibits, declined to cross-examine Petitioner, and concluded that he had completed Respondent’s direct examination when she felt that he had not done so.

Petitioner opposes the motion.  She argues that the record shows that Carroll acted on Respondent’s behalf at the DVRO hearing, opposing the DVRO and presenting evidence.  Respondent replies to the opposition.  She reiterates her claims that Carroll failed to handle the hearing properly.  She also make underlying factual assertions and arguments about the violence claims and she briefly discusses the court’s order denying Petitioner’s motion to declare Respondent a vexatious litigant.

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).

CCP section 473(b) allows parties to set aside dismissals or defaults, or the functional equivalent thereof, based on mistake, inadvertence, surprise, or excusable neglect.  CCP § 473(b).  “[D]iscretionary relief under the statute is not limited to defaults, default judgments, and dismissals, but is available from any judgment.”  English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 149; see also Las Vegas Land & Development Co., LLC v. Wilkie Way, LLC (2013) 219 Cal.App.4th 1086, at 1092-1093 (quoting and relying on English).

CCP section 473(b) states that “the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, or neglect, vacate” any resulting default or, default judgment, or dismissal.  Emphasis added.  The provision is clear that this is mandatory “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”  Ibid.  On granting a motion based upon an attorney affidavit of fault, the “court shall… direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”  CCP section 473(b).  The court also may impose sanctions.  CCP section 473(c)(1).

The court explained in Las Vegas Land & Development Co., LLC v. Wilkie Way, LLC (2013) 219 Cal.App.4th 1086, at 1092, that “in the case of an attorney's abandonment of a client, the injured client's remedy is to bring a motion for discretionary relief under section 473,” specifically section 473(b) based upon an attorney affidavit of fault.  In that case, a party sought relief from an order on a motion for summary judgment pursuant to CCP section 473(b) based on the assertion that its attorney had abandoned it. The trial court denied the motion on various grounds, including the finding that the party had submitted no attorney affidavit of fault and because it found the circumstances, specifically the attorney’s conduct, did not support the argument for relief.  The court of appeal affirmed.  It found that the party could not rely on the provision for mandatory relief in part because an affidavit of fault is required for such relief.  It also found that the party needed to rely on the grounds for discretionary relief under CCP section 473(b) but that the client had failed to demonstrate a sufficient basis for such relief.  

The Supreme Court in Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, at 898-899, stated,

In general, a party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable “because the negligence of the attorney ... is imputed to his client and may not be offered by the latter as a basis for relief.” [Citation.] The client's redress for inexcusable neglect by counsel is, of course, an action for malpractice. [Citations.]

However, an exception to this general rule has developed. “[E]xcepted from the rule are those instances where the attorney's neglect is of that extreme degree amounting to positive misconduct, and the person seeking relief is relatively free from negligence. [Citations omitted.] The exception is premised upon the concept the attorney's conduct, in effect, obliterates the existence of the attorney-client relationship, and for this reason his negligence should not be imputed to the client.” (Italics added.) [Citations.] Courts applying that exception have emphasized that “[a]n attorney's authority to bind his client does not permit him to impair or destroy the client's cause of action or defense.” [Citations.]

In spite of half-hearted attempts to argue that his counsel's neglect was excusable, plaintiff appears to appreciate that his best hope for an affirmance lies in resort to the Daley line of cases: he is, after all, saddled with an amply supported if not compelled trial court finding that counsel's neglect was “gross.” The issue, therefore, becomes whether counsel's conduct amounted to “positive misconduct” by which plaintiff was “effectually and unknowingly deprived of representation.” [Citation.]

It reiterated, at 900, that the attorney’s conduct must be so obviously improper that it can be found to ‘ “obliterate the existence of the attorney-client relationship.” [Citation.]’

Discussion

Preliminarily, this motion is in fact a repeat of the prior motion for reconsideration, and thus must comply with the requirements for reconsideration or renewal of a motion pursuant to CCP section 1008.  Respondent fails to address this issue or even attempt to meet the requirements.  Although Respondent did not raise CCP section 473(b) in her initial moving papers, she did discuss relief pursuant to CCP section 473 in the later papers for the reconsideration motion and expressly made the same substantive arguments which form the basis for this motion.  This court explained that it denied that motion in various grounds, but, despite other problems with the motion, the court fully considered the arguments and grounds which for the basis for this motion.  The court, in its ruling, explained this and explained why it found those arguments to be substantively unpersuasive.  Accordingly, Respondent is improperly bringing a defective motion for reconsideration or renewal.  On this basis, the court DENIES the motion, rendering further discussion unnecessary to the ruling.

Nonetheless, this court also considers the substantive merits of this motion and, once again, rejects them as unpersuasive.  It therefore also denied the motion on this basis.  Respondent is correct that attorney abandonment may potentially be a basis for relief pursuant to CCP section 473(b).  This may, as explained above, be based on either an attorney affidavit of fault, which will require relief, or without such an affidavit, which may allow the court to grant the relief in its discretion.  As this court previously explained, and as Petitioner argues in her opposition, the record is clear that Carroll appeared for Respondent at the DVRO hearing, presented arguments and evidence on her behalf, conducted a direct examination of Respondent at the hearing, and generally acted on her behalf at the hearing.  Respondent shows nothing more than a possibility that Carroll may have made incorrect decisions or possibly not done as much as he could have.  The court cannot discern any abandonment or impropriety from the evidence or record.  The court also cannot second guess the decisions of counsel at the hearing based on the record in this situation.  Nothing in the record or the evidence supports a finding that Carroll’s conduct could possibly be found to have “obliterate[d] the existence of the attorney-client relationship.”

            The court DENIES the motion on this basis, as well. 

Conclusion

The court DENIES the motion for the reasons set forth 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 3.1312.

2. 24FL02075 COLIN v. BAUERMEISTER DISSOLUTION

TENTATIVE RULING:

Motion to Bifurcate and Terminate Marital Status CONTINUED to the law and motion calendar of ___April 24, 2026 at 9:30 a.m., in Department 22 to allow Petitioner to provide the missing FL-347 form, completed and filled out, along with related missing information regarding the retirement or pension plans.  Petitioner must demonstrate that the plans need not be joined, or must join them, and must specify the type of order, i.e., FL-347 order 3a(1), 3a(2), or 3a(3), which he seeks.  If Petitioner satisfies this requirement and the court finds the information sufficient, the court will be able to grant the motion.  However, the court cannot grant the motion without the required documents and information.   

Facts

Petitioner filed this action for dissolution of marriage without minor children on October 10, 2024.  Respondent filed her response on November 8, 2024.  Petitioner filed his declaration regarding service of his preliminary declaration of disclosure on January 28, 2025 and Respondent filed her own such declaration as well as an income and expense declaration on July 9, 2025.  Otherwise, very little has occurred in this proceeding since then.  Petitioner’s attorney substituted out of this action on December 2, 2025 and both parties are currently self-represented. 

Petitioner moved the court to bifurcate and terminate marital status.  At the hearing of December 12, 2025, the court found that Petitioner had failed to provide all of the required forms or information regarding retirement or pension plans, making it impossible for the court to determine the details of the possible order.  It therefore continued the motion to February 13,2026 in order to allow Petitioner to provide the missing documents and information. 

Motion

In his Request for Order (“RFO”) and Motion to Bifurcate and Terminate Marital Status, Petitioner moves the court to bifurcate the issue of marital status from other issues and enter a judgment for termination of the marriage only. 

Respondent has filed an opposition to the motion but her opposition discusses solely her claims for spousal support.  She does not appear to oppose bifurcation or termination of status of marriage, or address other issues specifically raised in the motion. 

Applicable Law

According to the Family Law Rules of the California Rules of Court (“CRC”) 5.2(d), and Family Code (“Fam. Code”) section 210, provisions applicable to civil actions generally apply to proceedings under the Family Code unless otherwise provided.  This includes the rules applicable to civil actions in the California Rules of Court and the Code of Civil Procedure (“CCP”).  See, e.g., In re Marriage of Boblitt (2014) 223 Cal.App. 4th 1004, at 1022 (discovery); In re Marriage of Zimmerman (2 Dist. 2010) 183 Cal.App.4th 900, at 910-911 (discussing the applicability of CCP section 473 when a party seeks relief from orders in family proceedings).       

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

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

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

Emphasis added.

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

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

Form FL-347 section 3 sets forth the court’s orders regarding retirement plans.  It states,

To preserve the claims of each party in all retirement plan benefits on entry of judgment granting a dissolution of the status of the marriage or domestic partnership, the court makes one of the following orders for each retirement plan in which either party is a participant:

(1)        A final domestic relations order or qualified domestic relations order under Family Code section 2610 disposing of each party's interest in retirement plan benefits, including survivor and death benefits.

(2)        An interim order preserving the nonemployee party's right to retirement plan benefits, including survivor and death benefits, pending entry of judgment on all remaining issues.

(3)        A provisional order on Pension Benefits—Attachment to Judgment (form FL-348) incorporated as an attachment to the judgment of dissolution of the status of marriage or domestic partnership (Judgment (Family Law) (form FL-180)). This order provisionally awards to each party a one-half interest in all retirement  benefits attributable to employment during the marriage or domestic partnership.

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

In FL-347 section 3, therefore, the court is supposed to list, and make an order for, every retirement plan in which either party is participating.  Section 3’s first paragraph concludes by stating, with emphasis added, “the court makes one of the following orders for each retirement plan in which either party is a participant:”  The list which follows is for the court to identify all of the plans and which type of the three possible orders is being made for each plan.

Form FL-347 item 5.e reflects the language in section 2337(c)(5) regarding retirement plans and the like.  It states, in full,

Except for any retirement plan, fund, or arrangement identified in any order issued and attached as set out in paragraph 3, until judgment has been entered on all remaining issues and has become final, the must indemnify and hold the other party harmless from any adverse consequences to the other party if the bifurcation results in the loss of the other party's rights with respect to any retirement, survivor, or deferred compensation benefits under any plan, fund, or arrangement, or to any elections or options associated with them, to the extent that the other party would have been entitled to those benefits or elections as the spouse or surviving spouse or the domestic partner or surviving domestic partner of the moving party.

Accordingly, the court is required to list all retirement plans in which one or both parties is a participant, and identify which kind of order it is issuing for each plan.

The moving party has the burden to ensure all retirement accounts have been addressed, whether to join them or not, and further to include them in the forms. If they cannot do that, the Court can deny the request to bifurcate status, as there is a risk to the other party’s interest in those accounts.

Discussion

Petitioner meets the fundamental procedural requirements for this motion.  He presents the motion on the appropriate FL-300 form and properly attaches the FL-315.  He also earlier filed a declaration showing service of his PDD on Respondent.

The motion seeks bifurcation and adjudication solely of marital status, with termination of the marriage.  All other issues Petitioner requests be reserved for later determination. 

Petitioner identifies three pension or retirement plans at issue, one of his and two of Respondent’s.  FL-315, section 1(e)(2).  He requests that until judgment becomes final each party must indemnify and hold harmless the other from any adverse consequences.

Petitioner has not provided a proposed FL-347, which should include details for the order regarding any pension or retirement plans, and he has not clearly indicated how each plan has been addressed either in the proposed order or with respect to whether they have been joined or need not be joined.  The court notes that the record does not show that any such plan has been joined.  Without this information, the court cannot at this time grant the motion. 

In all other respects aside from the missing information regarding pensions the motion is sufficient and persuasive.  Respondent’s opposition papers raise issues outside the scope of this motion, specifically her claim to spousal support, and the court will consider those issues separately.  She presents no basis for denying this motion.         

Conclusion

The court CONTINUES the motion to allow Petitioner to provide the missing FL-347 form, completed and filled out, along with related missing information regarding the retirement or pension plans.  Petitioner must demonstrate that the plans need not be joined, or must join them, and must specify the type of order, i.e., FL-347 order 3a(1), 3a(2), or 3a(3), which he seeks. 

3. 24FL01789 CHINA v. BAUERMEISTER DISSOLUTION

TENTATIVE RULING:

This matter is on calendar for the determination of Petitioner’s contention that Respondent waived his attorney-client privilege with respect to all or part of his communications with his former attorney, Beki Berrey.  The court finds NO WAIVER of the privilege.

Facts

Petitioner filed this action for dissolution of marriage with one minor child (the “Child”) on September 4, 2024. 

Petitioner sought a Domestic Violence Restraining Order (“DVRO”) and the court conducted the hearing on that request on June 6, 2025.   At that hearing, both parties and their attorneys were present and they ultimately stipulated to several matters on the record, including the issuance of a one-year DVRO, upon which the court issued the stipulated Domestic Violence Restraining Order After Hearing.  The DVRO protects Petitioner and the Child and it restrains Respondent. 

On November 18, 2025, Respondent filed a Request for Order (“RFO”) and Motion for Temporary Emergency Orders to Set Aside Stipulated DVRO, along with other relief (the “Motion to Set Aside”).  Petitioner opposed the motion and, in her Memorandum of Points and Authorities re Waiver of Attorney Client Privilege (the “Waiver Brief”), she argued that Respondent was relying on, and introducing as evidence, certain communications between him and his then-attorney, Beki Berrey (“Berrey”), thereby waiving his attorney-client privilege with Berrey.  At the hearing on November 24, 2025, the court continued the matter regarding waiver of attorney-client privilege to January 23, 2026, in order to allow for briefing and full consideration of the issue prior to considering the motion to set aside.  It continued the motion to set aside the DVRO to February 13, 2026.  The court continued the two matters again, continuing the matter regarding waiver to February 13, 2026 and the motion to set aside to February 27, 2026. 

Motion

Although in the context of Respondent’s Motion to Set Aside, the matter specifically before the court at this time is a determination of Petitioner’s assertion that Respondent has waived his attorney-client privilege with his former attorney, Berrey, through the evidence and arguments in support of his Motion to Set Aside.  She asserts that in support of his claimed “surprise” at the effects of the DVRO, Respondent has provided a partial communication between himself and Berrey, thereby waiving his privilege to the rest of the communication, which may be necessary to make a determination regarding Respondent’s contentions.  She contends that at the least, Respondent waived the privilege with respect to the redacted communication in his papers and also that he in fact waived the privilege regarding all communications with that attorney.

Respondent, in opposition, contends that he did not waive the privilege because he was simply using his message as evidence that, at the time, he did in fact convey a lack of understanding about the stipulation.  He asserts that no other communication was revealed or is relevant, or related to his message.

Petitioner has filed a reply, reiterating her arguments and contending as well that Respondent also waived his privilege with Berrey by talking to her in the court hallway in the presence of another person. 

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).

Communications between an attorney and the attorney’s client or the client’s agent are privileged, and thus not discoverable.  Evidence Code (“Evid.Code”) sections 952, 954, 956.  According to Evid. Code section 952, “confidential communication between client and lawyer” means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship. 

Once the attorney-client privilege is asserted, the communication sought to be suppressed is presumed confidential.  Thereafter, the party seeking discovery of the communication has the burden of proof to show that the communication is one not made in confidence, or otherwise protected. Evid. Code section 917.

Evid. Code section 912 governs waiver of the attorney-client privilege, among others.  It states, at  subdivision (a), that such privilege  is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure…. Consent to disclosure is manifested by any statement or other conduct of the holder of the privilege indicating consent to the disclosure, including failure to claim the privilege in any proceeding in which the holder has legal standing and the opportunity to claim the privilege.

According to Evid.Code section 356, when one party puts into evidence a part of any writing or conversation, among others, the other party may inquire into the rest of the writing or conversation.  It states, in full, “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”

The Motion to Set Aside and Respondent’s Evidence

In the Motion to Set Aside, Respondent contends that when he stipulated to the DVRO, he was unaware of several effects that the DVRO would have.  Respondent attached a document showing test messages between himself and Berry.  It starts with a message from Berry stating, “I can’t represent you if you are instructing me not to spend time on your case.  I need to respond to Carla’s email.  I am not going to have a call with you where you question me about last Friday.”  This is followed by several lines of redacted text from Berry and then Respondent’s message stating, “I need to speak with you so I can understand what happened and understand this deal if you have time I am available [sic].  But I am not willing to make any choices until I fully understand what is going on.”  Following this, Berry replied, “And I’m not willing to represent you under the conditions that I do not do any further work on your case.  So either you respond to my message about the supervised visits, so I can respond to Carla, or I will be sending a substitution of attorney this morning.”

The court finds no basis for concluding there to be a waiver of the privilege with this communication, much less with Respondent’s communications with Berrey as a whole.  He merely attached a brief message from him to his attorney showing that he told her that he did not understand the ramifications of what he was supposed to sign and that he wanted an explanation before signing anything.  He provided this merely to demonstrate that at the time he in fact was unclear about the document and wanted guidance, as evidence of his claim that he did not understand the ramifications of the stipulation.  This is not a waiver of other communications between him and Berrey.  Moreover, Berrey’s statement at issue, which was redacted and which Petitioner specifically wants to access, was before Respondent’s statement.  This, combined with the content of the unredacted portion, indicates that the redacted communication was unrelated to the subject at issue and the bases for Respondent’s motion to vacate.  The redacted information is there, on its face, unrelated and not part of a greater communication which Respondent revealed.  This also means that Respondent did not reveal a substantial portion of a confidential communication while hiding potentially key, and relevant parts.   

Finally, even if the court were to consider the possibility of waiver and whether the redacted communication could be discoverable based on the standards set forth above, the court would instead conduct an in camera review first.  However, because the court finds no waiver, that step is unnecessary.  

In her reply papers, Petitioner also asserts, for the first time, that Respondent waived the privilege by having a conversation with his attorney on June 6, 2025, in the court hallway, with another person in the vicinity.  This does not support her argument. 

First, Petitioner did not raise this in her opening brief on this matter, or at any time prior to this final reply.  As the court explained in Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, at 1010, in the context of appellate briefing, “[t]he salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.”  It is “[t]he general rule” that a party may not present evidence for the first time in a reply if the moving party should reasonably have presented it in the opening papers, unless specifically provided to rebut opposition points.  Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.  Quoting American Drug Stores v. Stroh (1992) 10 Cal.App.4th 1446, at 1453, the Jay court explained that the trial-court “rule is based on the same solid logic applied in the appellate courts, specifically, that ‘[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.’” The court therefore finds it improper and on this basis does not consider it.

Second, the only support for this contention is some unauthenticated, unexplained, purported photos from surveillance cameras, with labels claiming to identify the people in the photos.  There is no authentication, no foundation, no explanation whatsoever which could make these admissible evidence.  There is not even a declaration or other statement of penalty of perjury discussing them.  They are merely attached to the reply memorandum of points and authorities as exhibit A, and then briefly described, again without any actual evidence but merely what amounts to nothing more than unsupported assertions in the memorandum.  No evidence supports the admission of these photos or, even if it did, that the photos portray the people alleged.   

Third, even if Petitioner had provided a proper authentication and foundation allowing the court to consider these as evidence, they do not support the claims that Respondent engaged in a conversation between his attorney in the presence of a third person.  The photos merely show three people standing in the court hallway, nothing more. 

Fourth, even if these photos were admissible evidence, and other admissible evidence demonstrate that Respondent and Berrey had a conversation in the court hallway, such evidence and Petitioner’s arguments would be wholly insufficient to demonstrate waiver of attorney-client privilege.  Nothing indicates what the “conversation” was about, that it contained confidential attorney-client communications, or that the mere fact it was made in the court hallway with another person in the vicinity indicates that Respondent waived his privilege.  There is no basis for finding a client to have waived the privilege by merely discussing matters with his attorney in a court hallway where other people may be present, as is typically the case.  Moreover, even if the conversation had been about privileged matters, nothing indicates what this conversation was about, that it had any bearing on this issue, that it could amount to a wholesale waiver of Respondent’s privilege in communications with Berrey, or that it relates to his message exhibit at issue.   

Conclusion

The court finds NO WAIVER of the privilege.  The prevailing party shall prepare and serve a proposed order consistent with this tentative ruling within five days of the date set for argument of this matter. Opposing party shall inform the preparing party of objections as to form, if any, or whether the form of order is approved, within five days of receipt of the proposed order. The preparing party shall submit the proposed order and any objections to the court in accordance with California Rules of Court, Rule 3.1312.

4. SFL 091365 CRAWFORD DISSOLUTION

Motion Continued to  April 10, 2026 AT 9:30 a.m. in Department 22.

There is no proof of service showing service on any party of notice of the hearing.  The court continued this matter from the prior hearing and the attorney has not cured the problem for the new hearing.  The court notes that at the end of the day before the prior hearing, after the court had published its tentative, the attorney filed late proofs of service for the motion and original hearing.    This was untimely and, in any case, the attorney did not appear at the hearing or advise the court of the proofs of service, of which the court was at that time unaware.  The proofs of service also fail to address notice for this hearing. 

5. SFL 094071 ROBERTS DISSOLUTION

TENTATIVE RULING:

Motion to Dismiss Contempt Proceedings GRANTED.

The court finds Respondent NOT TO BE in contempt and discharges the Order to Show    Cause.

Facts

Petitioner filed this action for dissolution of marriage without minor children on July 21, 2023.  Respondent filed his response on August 25, 2023.

On January 31, 2025, Petitioner brought an ex parte application for an order that she be allowed to take control of and sell the residential real property at 1421 Jasmine Circle, Rohnert Park (the “Property”).  The court granted the application and issued an order (the “Sale Order”) that Petitioner take control of the Property, take the measures necessary to sell it, and sell it, along with an order for holding the proceeds of the sale.

On March 3, 2025, Respondent submitted an ex parte request to return exclusive control of the Property to him.  The court denied that on the basis that there was no demonstrated emergency but set the matter for a hearing of April 17, 2025. 

At the hearing of April 17, 2025, which also included a settlement conference, the parties and court addressed outstanding issues and noted that the parties did not reach a settlement.  The issue of the Property control was not resolved, Petitioner indicating an agreement to relinquish control and not sell the Property upon proof that the Property was not in default and under threat of foreclosure sale. 

On June 30, 2025, upon the application of Petitioner, the court issued an Order to Show Cause (“OSC) and Affidavit for Contempt, setting the hearing on the OSC for September 10, 2025.  Petitioner later requested a continuance because her attorney would be unavailable, so the court continued the hearing to October 16, 2025.  Respondent, at the time self-represented, filed a late opposition on October 14, 2025.  The same day, Petitioner’s attorney substituted out, leaving Petitioner self-represented. 

At the hearing on the OSC, Respondent pleaded not guilty to contempt and asked the court to allow him time to obtain an attorney for the contempt proceedings.  The court did so, continuing the matter to December 8, 2025.  By the December hearing, Respondent had obtained counsel and moved to dismiss the contempt proceedings on the basis that Petitioner’s OSC was not based on violation of an actual court order.  With the parties both present, the court continued the matter again to February 13, 2026, to allow full consideration. 

Contempt OSC and Motion to Dismiss

Fundamentally, this hearing is on the OSC for contempt issued against Respondent.  In her OSC application and affidavit, Petitioner claims that Respondent agreed at a settlement conference of April 17, 2025 to advance $10,000 to Petitioner so she could move out of the family residence, but upon receiving the proposed stipulation, he refused to sign it or advance the funds. 

Respondent opposes the OSC and moves to dismiss it on the basis that there is no court order at issue.  He contends that Petitioner merely shows that he orally agreed to provide the funds, the parties never actually entered into a settlement, his alleged agreement was never reduced to writing or entered into before the court, and it was never made a court order. 

Applicable Authority

According to the Family Law Rules of the California Rules of Court (“CRC”) 5.2(d), and Family Code (“Fam. Code”) section 210, provisions applicable to civil actions generally apply to proceedings under the Family Code unless otherwise provided.  This includes the rules applicable to civil actions in the California Rules of Court and the Code of Civil Procedure (“CCP”), and specifically proceedings pursuant to the Civil Discovery Act set forth at CCP section 2016.010, et seq.  See, e.g., In re Marriage of Boblitt (2014) 223 Cal.App. 4th 1004, at 1022 (discovery); In re Marriage of Zimmerman (2 Dist. 2010) 183 Cal.App.4th 900, at 910-911 (discussing the applicability of Code of Civil Procedure section 473).

The court may impose a punishment for contempt to compel obedience to its judgments and orders.  CCP sections 128, 178, 187, 1209, et seq.

CCP section 1209 sets forth the conduct constituting contempt and includes, inter alia, (a)(5), “[d]isobedience of any lawful judgment, order, or process of the court.”

When conduct amounting to contempt does not occur in the presence of the court, the proper procedure is to issue a warrant of attachment to bring the person charged to answer or grant a warrant of commitment upon notice or order to show cause (“OSC”).  CCP section 1211, 1212.  The court must investigate the charge, hear any answer, and allow examination of witnesses.  CCP section 1217.  The court must find that there has been a valid order, respondent actually knew of the order, respondent had the ability to comply, and respondent willfully refused to comply.  Conn v. Sup.Ct. (1987) 196 Cal.App.3d 774, 784.  A contempt proceeding is quasi-criminal and thus the respondent has some rights of a criminal defendant, including a presumption of innocence and right to live testimony.  People v. Gonzalez (1996) 12 Cal.4th 804, 816; CCP section 1217.  For this reason, in a contempt proceeding, ‘every “i” must be dotted and every “t” crossed.’  Cedars-Sinai Imaging Med. Group v. Sup.Ct. (2000) 83 Cal.App.4th 1281, 1287.  The court may not find the respondent in contempt in the respondent’s absence unless the court finds that the absence is voluntary.  Farace v. Sup.Ct. (1983) 148 Cal.App.3d 915, 918.

The maximum punishment is up to $1,000 in fine or 5 days in jail, or both.  CCP section 1218(a).  The court also “may” order the contemnor to pay the reasonable fees and costs of the party initiating the proceedings. CCP section 1218(a).

Discussion

Respondent correctly notes that there is no underlying court order which he has allegedly violated.  Petitioner has only claimed that Respondent orally agreed to provide her $10,000 in order to help her move out, at an inconclusive settlement conference, and that he later refused to sign the agreement or pay the money.  Her own papers therefore show no court order at issue. 

Respondent points out that even Petitioner’s own assertions merely show that he orally agreed to provide the funds while the parties never actually entered into a settlement.  He correctly notes that this alleged agreement was never reduced to writing or entered into before the court, and it was never made a court order.   At the hearing of April 17, 2025, which included a settlement conference, the court expressly found, on the record, that the parties did not reach a settlement.  The alleged agreement which Petitioner claims Respondent has violated was not made in writing, was never entered into orally before the court, was not made a part of a court order.  It was, at the very most, an oral agreement made during a failed settlement conference, which did not ever result in an actual settlement or resolution of any issues.  On these points, the court records is unequivocally clear.  There is accordingly no court order at issue and thus no conduct which could amount to contempt.  Even if the parties had entered into a settlement agreement in this issue, in writing or orally before the court, without a court order Respondent’s alleged failure to comply would not be a basis for contempt but would at most be a basis for a motion to enforce settlement pursuant to CCP section 664.6.  Even that, however, does not apply here since there was no agreement in writing or orally before the court.

The court finds there to be no basis for a finding of contempt, and accordingly finds Respondent not to be in contempt.  It grants Respondent’s motion to dismiss and discharges the OSC with a finding of no contempt.  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.

       

[END OF TENTATIVE RULINGS.]