Family Law Tentative Rulings - Courtroom 23

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) 521-6729 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. 25FL00269, Call Dissolution

Respondent’s Motion to Set Aside Default (CCP §473(b)) on this calendar raises several issues.  The court DENIES the motion to set aside the default and Marital Settlement Agreement, as set forth below, as well as the request for sanctions pursuant to Family Code section 271.  On all other issues, the court REQUIRES APPEARANCES. 

Facts

            Petitioner filed this action for dissolution of marriage with a minor child (the “Child”) on February 6, 2025.  The Child, born in March 2020, is still a minor.  

            Petitioner filed proof of service for the petition, summons, and required declarations on February 26, 2025.  This shows that someone on his behalf served Respondent personally with the summons, petition, and declarations on February 9, 2025.

            Respondent failed to file a response by July 21, 2025, and on that date Petitioner obtained entry of default (the “Default”) against her.

Motion

            In her Request for Order (“RFO”) and Motion to Set Aside Default (CCP §473(b)), Respondent moves the court to set aside the Default.  She contends that after Petitioner served her with the summons and complaint, they began negotiating for settlement so she “was lulled into a false sense of security and believed it was unnecessary to file a formal Response.”  She relies on Code of Civil Procedure section 473(b) to set aside the default, stating that Petitioner obtained the Default when they were negotiating and he continued to negotiate after the Default, resulting in an executed Marital Settlement Agreement (“MSA”) on August 12, 2025.  She adds that she entered into the MSA based on Petitioner’s representations of his income and finances but that she has since discovered that his representations were false.  On this basis, she also seeks to set aside the MSA based on Family Code section 2122.

            Petitioner opposes the motion.  Regarding the default, he acknowledges that he began to negotiate a settlement with Respondent after he filed the petition but states that he never told her in any way not to file a response or that he would not take her default, Respondent knowingly chose not to file a response, and he had already provided her with copies of the filed default and his judgment packets before the parties entered into the MSA. 

            Respondent has filed reply declarations but they are untimely and she has provided no proof of service for them.

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.  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.]

            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).  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.  CCP § 473(b).

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.

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 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.

            Fam. Code section 2122 sets forth the various bases for relief pursuant to that provision.  It provides different grounds for stipulated or uncontested judgment, and other judgments.

            Aside from stipulated judgments, 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. 

            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).

            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.

            Although Respondent does not raise it, the court notes that the court has not yet entered a judgment or incorporated the MSA into a judgment, so the rules for enforcing a settlement agreement pursuant to CCP section 664.6 may also be applicable to the MSA in this case.  Obligations imposed under a marital settlement agreement (“MSA”) which has not been “merged” or “incorporated” into the judgment remain enforceable by ordinary contract remedies and provisions for enforcement of settlement agreements. See Fam.Code section 2128(b); Marriage of Lane (1985) 165 Cal.App. 3d 1143, 1147-1149 (breach of warranty action available to enforce MSA warranties because there was no merger); see also Marriage of Armato (2001) 88 Cal.App. 4th 1030, 1045-1047 (signed written agreement increasing child support enforceable by motion pursuant to CCP section 664.6).

When a party seeks to enforce a stipulated settlement entered in writing or orally before the court, the court “may enter judgment pursuant to the terms of the settlement.”  CCP section 664.6.  This gives the court discretion.  In addition, when ruling on a CCP section 664.6 motion, the court is a trier of fact and its ruling will be upheld if based on “substantial evidence.”  Fiore v. Alvord (1985) 182 Cal.App.3d 561, 566.   As explained in Hines v. Lukes (2008) 167 Cal.App.4^th 1174, at 112, “[t]he court retains jurisdiction to enforce a settlement under the statute even after a dismissal, but only if the parties requested such a retention of jurisdiction before the dismissal. (Citation) Such a request must be made either in a writing signed by the parties or orally before the court.”     

The court in Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4^th 793, at 797 emphasized that before “judgment can be entered, two key prerequisites must be satisfied.”  These are contract formation and a writing signed by the parties with the material terms.  Id.  As with other contracts, if there is no meeting of the minds on the material terms, then no contract has been formed.  Id., 797.  Absent such a contract, there is no settlement agreement which the court may enforce.  Id.  Section 664.6 only applies to agreements made in writing and signed by the parties, or orally before the court.  If the agreement does not meet these requirements, the party cannot enforce it under section 664.6.  Weddington, supra, 809-810.

The general policy is in favor of carrying out the parties’ intentions by enforcing contracts, and it disfavors finding contracts unenforceable due to uncertainty.  See Larwin-Southern California, Inc. v. JGB Investment Co. (1979) 101 Cal.App.3^d 626, at 641.  The court in Larwin-Southern stated that neither law nor equity requires every term and condition to be set forth in the contract and that the court may look to “the usual and reasonable terms found in similar contracts” and it may infer unexpressed provisions from the writing, the circumstances, custom, and usage, as long as they do not alter the terms of the agreement.  Id.  “At bottom,” the court said, “if the parties have concluded a transaction in which it appears that they intend to make a contract, the court should not frustrate their intention if it is possible to reach a fair and just result, even though this requires a choice among conflicting meanings and the filing of some gaps the parties have left.”  Id.    

            The court generally may not simply alter the terms of a stipulated judgment, as when entering judgment upon a stipulation pursuant to CCP section 664.6.  Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259, 267; Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1374-1375.  As the court explained in Leeman,

While the court may interpret the terms of the parties' settlement agreement, “nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.”  [Citations.]

…

While the court has the authority to refuse to issue the requested consent judgment, what the court could not do in considering approval of a settlement under Code of Civil Procedure section 664.6 was to add to or modify an express term of the settlement.

The court in Ironbridge added, however, that courts have authority to fashion orders to enforce compliance with a stipulated judgment, stating,

Code of Civil Procedure section 664.6 allows the court to enter a stipulated judgment in settlement of a case, and to retain jurisdiction to enforce the settlement. Moreover, section 128, subdivision (a)(4) provides that the court has the power to “compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein.” These provisions, together, give the court authority to fashion orders to enforce compliance with a stipulated judgment.

In addition, CCP section 128 gives the court the power to control the proceedings before it, preserve and enforce order, compel obedience to judgments, orders, etc.; and make orders and process “conform to law and justice.”  The court in Venice Canals Resident Home Owners Ass'n v. Superior Court In and For Los Angeles County (1977) 72 Cal.App.3d 675, at 679, explained,

The inherent power of the trial court to exercise reasonable control over litigation before it, as well as the inherent and equitable power to achieve justice and prevent misuse of processes lawfully issued is well established [Citations]; the court may make discretionary orders with reasonable conditions; and even make subsequent limitations and modifications of prior orders in order to achieve justice [Citation]….” 

Courts therefore have inherent power to control judicial proceedings in order to insure orderly administration of justice and to see to it that all persons indulge in no act or conduct calculated to obstruct administration of justice.  People v. Smith (1970) 13 Cal.App.3d 897.

Reply

            As noted above, Respondent has filed reply declarations but they are untimely and she has provided no proof of service for them.  She filed them on October 19, 2026, only four court days prior to the hearing but reply papers must be filed and served no later than five court days prior to the hearing.  The court therefore must disregard them.

Discussion

Setting Aside the Default

Respondent moves the court to set aside the default pursuant to CCP section 473(b).  However, the default was entered on July 21, 2025 and Respondent did not file this motion until May 15, 2026, almost ten months later.  As explained above, the deadline for a motion pursuant to CCP section 473(b) is six months and Respondent has therefore missed that deadline by about four months.  The court notes that Respondent may not rely on traditional doctrines governing the court’s equitable power to grant relief based on extrinsic fraud or mistake after that deadline, either.  As explained above, the law is clear that in family law matters, after the six-month deadline of CCP section 473 has expired, relief is only available pursuant to Fam.Code sections2121, 2122, and 3691.

Respondent fails to demonstrate a basis for relief under the applicable Fam.Code 2121, 2122, and 3691.  She does not claim that Petitioner defrauded her in any way, committed perjury, persuaded her not to file a response on any false pretenses, or the like.  She merely claims that she thought that there would be no need to file a response because they were trying to negotiate.  While this could possibly have been a basis for relief under the equitable doctrine of extrinsic fraud or mistake or CCP section 473(b), it does not satisfy the requirements of Fam.Code sections 2121, 2122, and 3691.

The court further notes that Respondent missed the deadline for seeking relief under CCP section 473(b) and equitable doctrines by several months and makes no effort even to demonstrate ignorance of the default or when she learned of it.  She states only vaguely that she has acted “promptly” and that she decided to request the court to set aside the default because she had “recently” learned that the information on which she based her agreement to the MSA was false.  Attachment to FL-300 (25-FL-00269) Declaration of Respondent in Support of Request for Order (“Respondent Dec.”), ¶¶2-5.  She does not state when she discovered the default and even if the discovery if issues regarding the MSA were “recent” the MSA is immaterial to the prior default.  Petitioner, by contrast, expressly states in his opposing declaration (“Petitioner Dec.”) that he told Respondent about the default and gave her a copy of the default before the parties entered into the MSA in August 2025.  The court, in any case, stresses that regardless of when Respondent discovered any of this information, she has missed the absolute six-month deadline for the relief requested. 

Even if she had not missed the deadline for seeking such relief, Respondent also fails to demonstrate sufficiently persuasive grounds for relief under CCP section 473(b) or equitable doctrines.

            Petitioner himself in Petitioner’s Dec. states that he never told her in any way not to file a response or that he would not take her default, Respondent knowingly chose not to file a response.  He also explains that he entered the default as a first step to entering a stipulated judgment based on the MSA which he anticipated they would sign.  The court notes that this is not, in of itself, improper or suspicious in any way.  It is a standard and appropriate practice in uncontested matters where the parties are agreeing so early to enter into a stipulated judgment for a petitioner to file a default prior to requesting entry of the judgment based on an MSA.  Unless the Respondent has filed a response, entering the default is a required first step before seeking entry of the judgment. 

The court also notes that Respondent’s inability to challenge the default does not necessarily affect her ability to challenge any judgment, including one based on the MSA, or the MSA itself. 

Finally, despite raising arguments against the request to vacate the default, Petitioner states that he does “not object to Wife’s Motion to Set Aside.”  There is no basis for the court to grant it for the reasons explained, however, and the exact implication of this statement is at this time unclear.  The exact intention of this statement is also unclear, in the context of the motion and the opposition.  Petitioner presents arguments countering Respondent’s assertions in his opposition.  Also, the import of the word “object” here is uncertain.  Should Petitioner agree to enter into a stipulation to set aside the default, Petitioner may address that with Respondent.  

The court DENIES the motion as to the request to set aside the default.

MSA

            Respondent also moves the court to set aside the MSA based on Fam. Code sections 2121 and 2122.  She claims that she entered into the MSA based on Petitioner’s representations of his income and finances but that she has since discovered that his representations were false.

            Respondent’s assertions present the type of relief which is available under Fam. Code sections 2121 and 2122 for stipulated judgments.  She states that after filing the petition, Petitioner reduced his overtime at his regular employment with the Sonoma County Sheriff’s Department and sought some under-the-table extra work to add to his income.  This, she claims, reveals that he underreported his income and finances to her during their negotiations. 

            Respondent’s motion is not, however, persuasive.  Additional, hidden “under the table” side work could be material but her evidence is unclear, minimal, and tenuous. 

            Respondent refers to two text messages indicating that he was seeking some under-the-table side work and cutting back on overtime at his regular work and this could be problematic, but this evidence is insufficient to support her motion.  This is a potentially troubling and problematic issue but Respondent fails to explain that she was unaware of it, when she knew of it, or how she obtained these messages.  Regardless of Petitioner’s conduct in this regard, if she was aware of his actual income and work status, there would be no fraud or mistake with respect to the MSA as needed to support the motion.  Moreover, she provides no evidence indicating whether Petitioner’s efforts to obtain such work actually were successful, whether this occurred before or after the parties entered into the MSA, or how much money he made under the table, if any.  

            Respondent also claims that Petitioner’s paystubs show a monthly income of “over $11,000” and that this conflicts with his Income and Expense Declaration (“IED”) of June 14, 2025 claiming a gross monthly income of $10,612 but this evidence also is equivocal and lacking key details.  Again, discrepancies of this type may be problematic and potentially material, but Respondent provides nothing actually showing an inconsistency, fraud, or intentional misconduct.  She fails to indicate the dates of the paystubs in question, so nothing shows that the paystubs reflected income at the time of the MSA or negotiations.  For example, if the paystubs she cites were from several months later, that difference does not in of itself show a conflict between his actual and stated income at the time of the IED, negotiations, or MSA.  She also does not state that she was unaware of the discrepancy at the time of the negotiations or signing of the MSA, if indeed the discrepancy actually dated to that time.  Finally, the difference between a stated gross monthly income of $10,612 and some paystubs showing pay of about $11,000 or more per month does not, without more, necessarily show an actual discrepancy, fraud, or other misconduct.  The difference between these amounts is small portion of the total income and, absent evidence showing how many paystubs were over the stated amount, when they were, or other necessary evidence, the discrepancy could easily be due to fluctuating monthly income.  The IED may state an average monthly income even while some months have more or less pay.  There is absolutely no evidence whatsoever about any of this.

            The court also finds it important to consider that as yet it has not entered a judgment with based on, and incorporating, the MSA or not.  No deadline for any applicable basis for relief has therefore yet expired, unlike the case with the default.  This means that the MSA is not yet effective as a judgment and, unlike the default, may be challenged on grounds other than those set forth in the Family Code states cited above.     

            It is not clear from the opposition whether Petitioner is willing to set aside the MSA.  He raises arguments against the motion, disputing Respondent’s arguments in favor of the motion to vacate. 

            The court DENIES the motion as to the MSA, without prejudice to Respondent challenging it again.

Spousal and Child Support

            In his opposition, Petitioner contests Respondent’s position regarding spousal support but he states that he does not object to her request for guideline child support.  However, Respondent has not raised these issues directly in this motion.  She has only challenged the default and the MSA as discussed above, attorney’s fees and costs, and separate issues of child custody and visitation which this court is considering and addressing separately from the ruling on the request to set aside the default and MSA. 

Attorney’s Fees and Costs

            Respondent also requests an award of attorney’s fees and costs pursuant to both Fam.Code sections 271 and 2030.

            Fam. Code section 271 broadly authorizes the court to make an award of attorney’s fees and costs “in the nature of a sanction,” and “[n]otwithstanding any other provision of this code,” based on “the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.”  The party requesting an award of attorney’s fees and costs on this basis is not required to demonstrate any financial need for the award.

            Fam. Code section 2030 states that the court must ensure that each party has access to legal representation by ordering, if necessary, one party to pay the other party or attorney reasonable attorney’s fees and costs for maintaining or defending the proceedings.  The court must make findings as to whether the award is appropriate, there is a disparity in access to funds, and whether one party is able to pay for the legal representation of both.  It allows recovery of such litigation expenses in the family-law action and any other “related” action.

            Preliminarily, the necessary, fundamental basis for this award is that the moving party must demonstrate a disparity in financial ability to pay for litigation and that the moving party lacks sufficient resources to pay for litigation.  Subdivision (a)(2) states, in pertinent part and with emphasis added,

the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both…. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs.

            The court finds no basis for an award of attorney’s fees and costs pursuant to Fam. Code section 271.  However, as explained above, the court finds the motion to be unpersuasive.  Respondent has missed the deadline for setting aside the default on grounds other than those set forth in the Family Code provisions above and she fails to demonstrate any basis for setting side the default.  Respondent also has not demonstrated a basis for setting aside the MSA.

            The court DENIES Respondent’s request for sanctions, attorney’s fees, and costs pursuant to Fam.Code section 271.

            With respect to Fam. Code section 2030, the matter is less clear.  Respondent asserts that her income is slightly less than half of Petitioner’s and Petitioner does not dispute this.  There are, however, other factors complicating the matter.  Petitioner explains that he and Respondent had agreed to the MSA in order to settle the disputes, they reached agreements regarding Child custody, visitation, and schooling through mediation, and now Respondent has unilaterally rejected these agreements out of anger with him, unnecessarily generating legal expenses for both.  He also states that he cannot pay for her legal fees and that Respondent had refused any support which he had offered until now.  The court REQUIRES APPEARANCES with respect to Respondent’s request for legal expenses pursuant to Fam.Code section 2030.

Conclusion

            The court DENIES the motion to set aside the default and MSA, as set forth above, as well as the request for sanctions pursuant to Fam. Code section 271.  On all other issues, the court REQUIRES APPEARANCES to set the appropriate court dates for these issues.  Petitioner 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.   

                It is SO ORDERED.

          

**This is the end of the Tentative Rulings.***