Family Law Tentative Rulings - Courtroom 20

The following Tentative Rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, it will be necessary for you to contact the Judicial Assistant by telephone at (707)-521-6729 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.

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

To appear online via Zoom please use the following link:

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

To appear via Zoom by phone:

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

FOR ORAL ARGUMENT REQUESTS - PLEASE CALL THE COVERING JUDICIAL ASSISTANT AT (707) 521-6729. 
 

1. SFL092299, Schantz Dissolution
 

Motion for withdrawal of attorney of record is GRANTED.  Mr. Gonzalez shall prepare and serve a proposed order consistent with this tentative ruling within five days of the date set for argument of this matter.
 

2. 24FL01593, Neves Legal Separation

APPEARANCES REQUIRED for Motion for CCP Section 664.6 Request for Entry of Judgment; Request for Sanctions Pursuant to FC Section 271.

Facts

            Petitioner filed this action for legal separation with three children (the “Children”) on August 9, 2024.  All three Children are still minors.  Respondent filed his response on October 18, 2024.  Petitioner, after obtaining leave of the court, filed an amended petition seeking divorce on June 4, 2025, and Respondent filed his amended response on June 12, 2025.

            At a settlement conference on November 7, 2025, the parties signed a written Memorandum of Understanding (“MOU”) to settle most of their disputes in this litigation.  The MOU covers their disputes over property and obligations for expenses regarding the Children but expressly reserves the issues of child support and spousal support.  It adds that the parties are to bear their own attorney’s fees.  The MOU also expressly states that it is “enforceable pursuant to” Code of Civil Procedure section 664.6.  

Motion

            In her Request for Order (“RFO”) and Motion for CCP Section 664.6 Request for Entry of Judgment; Request for Sanctions Pursuant to FC Section 271, Petitioner moves the court to enter judgment according to the terms of the MOU.  She contends that the parties have circulated six alternative versions of the final marital settlement agreement (“MSA”) but that the parties have been unable to agree on the final terms and specifically Respondent has refused to sign any proposed MSA.  She also seeks monetary sanctions pursuant to Family Code section 271 for the legal expenses incurred. 

            Respondent opposes the motion. He acknowledges that the parties entered into the MOU but contends that the MOU is missing certain material terms regarding liability for a lawsuit against Petitioner which Respondent discovered after entering into the MOU, a mandatory calculation of child support, completion of various other property calculations which the MOU states will be done but which have not been completed, and a term regarding 2024 taxes which the parties agreed on separately. 

            Petitioner has filed a reply to the opposition. 

Applicable Authority

According to the Family Law Rules of the California Rules of Court (“CRC”) 5.2(d), and Family Code (“Fam. Code”) section 210, provisions applicable to civil actions generally apply to proceedings under the Family Code unless otherwise provided.  This includes the rules applicable to civil actions in the California Rules of Court and the Code of Civil Procedure (“CCP”).  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).

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 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.

Discussion

            Respondent is correct that the MOU itself includes a number of terms which are vague and incomplete.  The MOU terms require further agreement in open-ended terms without clear mechanisms or guidelines for enforcement.  These clearly both envision and require subsequent agreement in order to be finalized.  

            Section 5 states “The sale price shall be agreed upon in writing” but otherwise is this unclear.  It is open-ended, without guidelines or mechanisms of enforcement.  It also does not even indicate what “sale price” it is discussing, leaving its very application uncertain.  The MOU references several items of real property and vehicles to be sold, so the provision may be referring to all of those, or it may only be referring to the vehicles.  Section 5 is below section 4, discussing vehicles, but it is an entirely separate section.  Given that section 3, discussing only personal property, similarly appears to be under the heading for real property even though it clearly is not part of that topic, raises doubt over this.  At the same time, Section 5 states “The sale price” in the singular, which could mean that it is intended to reference the price of one specific item. 

             Regarding PG&E incentive shares, section 7 of the MOU states that the “parties through counsel will calculate the separate and community interests… and utilize a joint expert if necessary.  The Court retains jurisdiction over these assets.”  There is a basic agreement on these, as Petitioner argues, but Respondent is correct that the provision requires further agreement finalization to effect the overall intent.  It also requires a “joint expert if necessary” but does not indicate how the expert is to be chosen and does not indicate what circumstances would make it “necessary.”   As for court jurisdiction, this provision again does not indicate how the court is to make a determination if the parties have not finalized the calculations and determinations.  Moreover, Respondent shows that he has been attempting to complete this but that the parties have not yet been able both fully to agree or cooperate.  Although Petitioner may also have been attempting to complete this, the evidence shows at least that both parties are partly at fault and partly not at fault.  It also shows a simple failure to reach the agreement required to effect this division.  Respondent explains that the parties had chosen an expert, at least tentatively or ostensibly, but that they have not yet been able to obtain or provide all the information necessary for the expert to make the final calculations.  Respondent indicates that Petitioner is at least partly to blame for this since she has not provided all required information.  In her reply, Petitioner claims that the expert has completed his calculations but that Respondent has not agreed to them.  The parties’ statements about this are therefore inconsistent and the court at the very least requires clarification on what has occurred, whether the expert has completed the calculations, whether the parties agree.  The court also notes that the MOU is silent on whether the parties may disagree with the expert and how to resolve the issue if they do.  It states that “the parties” will make the calculations and while it allows them to retain an expert, it fails to clarify if the expert’s calculations are binding, whether the parties may disagree with the expert, or how to resolve any such dispute.  These issues render it unenforceable absent further agreement. 

            As Respondent argues, the history of the efforts to finalize an MSA, the extra terms added to it which are absent from the MOU, and the disagreements, underscore the fact that the MOU is too incomplete, unclear, too open-ended for the court to enter it as a judgment.  The proposed MSA from Petitioner herself includes a variety of terms not included in the MOU.  To some degree, these appear necessary to complete and effect those terms of the MOU which are vague and which clearly envision subsequent agreement to finalize.  The fact that both parties feel it necessary to include different terms in the final MSA which are not in the MOU in of itself demonstrates that the MOU is incomplete and impossible to effect clearly and certainly with the terms it includes.  Moreover, the MOU indicates that those details left unresolved are to be finalized via certain procedures and agreement.  Nothing indicates that it would be appropriate to enter judgment on the terms of the MOU when the parties had failed to agree on these details which the MOU requires them to complete.  Respondent notes that in part the additional terms on the proposed MSA, which Petitioner herself presented, include terms such as ¶52 to which the parties did agree in the subsequent discussions, but which are not in the MOU, rendering it improper to enter judgment simply using the MOU terms.  Critically, nothing shows that Respondent is at fault for these disagreements.  With the incomplete, open-ended provisions of the MOU, Respondent’s failure to agree to the terms which Petitioner has demanded appears reasonable and simply an aspect of the incompleteness of the MOU.  Even to the extent which Respondent has failed to agreed, and even if his position is somewhat unreasonable, the fact is that the MOU has terms which require further agreement and gives insufficient parameters for doing so, with the result that any disagreement is not on its face improper or in conflict with the MOU.  This means that the court cannot find Respondent to be at fault and it once again underscores the vagueness and incompleteness of the MOU. 

            Respondent is also persuasive that the post-MOU discovery of a lawsuit against Respondent herself for allegedly causing an automobile accident while driving under the influence of alcohol (“DUI”), is a material issue which may affect the validity and enforceability of the MOU.  Respondent details, with attached documents, how his attorney discovered the lawsuit after the MOU was signed and sought to include terms governing liability for any judgment against Petitioner.  Petitioner claims in her reply that the criminal prosecution against her has been completed and that she has agreed to some but not all of Respondent’s terms regarding indemnification from the related civil lawsuit.  However, the MOU is silent as to this important issue and it is clear the parties have progressed towards an agreement in the MSA, but the complete agreement regarding indemnification may still be unresolved.

            Petitioner appears to be correct that the failure to resolve child support is not material here.  Respondent claims that calculations are required but cites no authority and fails to consider the fact that the MOU expressly reserves all determination of child support for the future.  In her reply, Petitioner also asserts that she has provided support calculations and only Respondent has failed to do so.   

            The court does not dispute that some of the terms of the MOU do appear to be complete and clear, and the fact that the MOU does not purport to resolve all issues is not in and of itself a barrier to entering judgment on it.  However, the problems which the court has noted render it too unclear and incomplete on many of the issues which it was purportedly intended to resolve.  Those problems, combined with the fact that the parties simply cannot agree on how to effect it, render it improper to enter judgment on the MOU itself.  

            At this point, the court finds that entering judgment on the MOU itself would be premature and unwarranted.  The court also finds that the evidence does not show Respondent to be at fault for disagreements over terms and details which appear necessary, even according to the MOU itself, for the parties to complete. 

Conclusion

            APPEARANCES REQUIRED to discuss the current circumstances and address further efforts to resolve the matter.  However, currently the court feels that, without further clarification or agreement, the court is unable to grant the motion and enter judgment on the MOU.  The court anticipates denying the motion on this basis, without prejudice, but requires the parties to appear to obtain greater clarification and possible agreement prior to making a ruling.                

 

3. 26FL00924, Petition of Jimenez

APPEARANCES REQUIRED. 

Facts

            Petitioner brings this Petition to Set Aside Declaration of Paternity to set aside the declaration of paternity (the “Declaration”) which he signed regarding the minor child (the “Child”) of Respondent on February 8, 2018.  He alleges that he signed the Declaration voluntarily based on fraud and mistake because when the Child was born Respondent informed him that he was the Child’s father.  He alleges that Respondent subsequently told him that in fact he is not the biological father and that someone else is.  He adds that he originally reached an informal agreement with Respondent for supporting the Child, but he currently has no contact or relationship with the Child at all.  He also alleges that Respondent “recently opened a case” against him with the Sonoma County Department of Child Services (“DCSS”) to obtain payments for child support.  He wishes to obtain paternity testing of the Child to determine if he is the father and set aside the Declaration to avoid further liability for support if he is not the father. 

            DCSS has appeared in this action.  Both Petitioner and DCSS have filed proofs of service showing service on Respondent, but Respondent has not appeared in this action. 

            The court continued the original hearing to August 11, 2026, and served notice of the continuance on both Petitioner and DCSS.  DCSS filed opposition to the petition.  Both Petitioner and DCSS were present at the hearing, but the court informed them that it had erroneously been set on the wrong calendar and that the court was continuing it to October 16, 2026.

Motion

            This matter is now on calendar for the petition.  Petitioner seeks to set aside the Declaration and obtain paternity testing based on the claim that he signed the Declaration due to fraud and mistake. 

            DCSS opposes the petition.  It argues that it instituted the support proceedings based on the Declaration and that the court must deny the petition since Petitioner failed to bring it within two years after signing it.  DCSS adds that there is no indication that Petitioner did not understand what he was signing or that he did not sign it voluntarily, asserting that the alleged fraud and mistake are insufficient ground for relief given that the two-year deadline has passed.

Applicable Authority

            Where an unmarried mother gives birth to a live child, Family Code (“Fam.Code”) sections 7570, et seq., provide the procedure to establish parentage through the execution of a voluntary declaration of parentage (“VDP”) on a statutory form. The woman who gave birth and the person she has identified as either (i) the only possible other genetic parent or (ii) the intended parent of a child conceived through assisted reproduction must both sign it.  Fam.Code sections 7571, 7572, 7574; see also H.S. v. Sup.Ct. (2010) 183 Cal.App. 4th 1502, 1506-1508.   The declaration must be properly executed and filed with the DCSS in order to be effective.  Fam.Code section 7571; see also In re D.R. (2011) 193 Cal.App. 4th 1494, 1509-1511 (applying prior statute). 

            Such a declaration is not a conclusive presumption but instead is equivalent to a parentage judgment, conferring on the declarant all parental rights and duties, with the same force and effect as a parentage judgment entered by a court of competent jurisdiction.  Fam.Code sections 7573(d), 7644(b); see also Kevin Q. v. Lauren W. (2009) 175 Cal.App.4th 1119, 1132 (decided under prior statute).  

            A parent-child relationship established through a voluntary declaration may be nullified by rescission through a petition on the mandatory Form FL-280 and pursuant to the current or former Fam. Code section 7575, depending on when the declaration was executed.  Former Fam.Code section 7575 governs rescission of voluntary declarations executed before January 1, 2020.  County of Los Angeles v. Lugo (2025) 116 Cal.App.5th 206, 219.

            After the rescission period of Fam.Code section 7575(a) expires, but within two years after the effective date of a voluntary declaration, a signatory of the declaration may challenge it on the basis of fraud, duress, or material mistake of fact.  Fam.Code 7576(a).  Fam. Code section 7646 adds, in pertinent part,

(a) Notwithstanding any other law, a judgment establishing parentage may be set aside or vacated upon a motion by a previously established parent, the child, or the legal representative of any of these persons if genetic testing indicates that the previously established father of a child is not the genetic father of the child. The motion shall be brought within one of the following time periods:

(1) Within a two-year period commencing with the date on which the previously established father knew or should have known of a judgment that established the father's parentage of the child or commencing with the date the previously established father knew or should have known of the existence of an action to adjudicate the issue of parentage, whichever is first, except as provided in paragraph (2).

            DCSS relies in part on the discussion of the grounds for setting aside a VDP in In re William K. (2008) 161 Cal.App.4^th 1, at 10.  The court there addressed bases for setting aside a VDP, albeit by one who was not a signatory and who was the actual biological father who wanted custody of the child in question.  The court explained, in part,

either parent may seek to set aside the paternity judgment resulting from the VDP pursuant to Code of Civil Procedure section 473 for mistake, inadvertence or excusable neglect. (Fam.Code, § 7575, subd. (c).) No such conditions are suggested and appellant, assuming he qualifies as a parent within the meaning of the statute, did not bring any action or motion on this ground.

Third, an equitable collateral attack on the VDP is available on the grounds of extrinsic fraud. (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1068….) However, appellant recognizes that intrinsic, not extrinsic fraud is what he alleges occurred in this case.

Fourth, a motion to vacate a judgment of paternity based upon genetic testing may be brought pursuant to Family Code section 7646, but the moving parties are limited to the mother, the child and the previously established father. (Fam.Code, § 7646, subd. (a).) Appellant is not a person who can bring this motion.

Finally, any interested person can bring an action to establish paternity pursuant to Family Code section 7630, subdivision (b). However, that subdivision is limited to determining paternity under the rebuttable presumption of presumed fatherhood found in Family Code section 7611, subdivision (d), i.e., that an individual has received the child into his home and openly held the child out as his natural child.

           

            In William K., the Department of Social Services (“DSS”) removed a minor child from the custody of the mother at a time when the biological father (“Appellant”) was incarcerated.   The DSS filed a petition alleging that child was at risk of physical harm with the mother.  In the proceeding, the mother identified the Appellant as the biological father, but another man (“WK”) had signed a declaration of paternity and was identified as the father on the birth certificate.  Mother claimed that she had done this to protect the child from the Appellant father.  Appellant, upon his release, attended the jurisdiction hearing where the court ordered paternity testing, among other things.  The court found Appellant had no relationship with the child other than being the biological father, as the testing showed.  Appellant sought to set aside WK’s voluntary declaration of paternity, but the trial court found that Appellant had taken no steps previously to be anything more than the biological father, rejected his requests, found the child to be a dependent, and adopted a reunification plan for the mother and WK.   It found that Appellant had failed to show that his requests were in the best interests of the child, as required. The appellate court affirmed.  It noted that, in addition to the statutory grounds, a party may bring an equitable collateral attack on a voluntary declaration of parentage based on extrinsic fraud.  However, it explained, the Appellant “recognizes that intrinsic, not extrinsic fraud is what he alleges occurred in this case” so he could not seek relief on that basis.   In that case, nothing had prevented Appellant from asserting his rights in court proceedings and the only fraud was that of the mother and WK in claiming WK was the biological father.  This fraud had not prevented Appellant from asserting his rights and the timeliness of his request was not an issue. 

            The William K. court relied on In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, at 1068, for the discussion of extrinsic versus intrinsic fraud or mistake.  The court there explained,

“The final judgment of a court having jurisdiction over persons and subject matter can be attacked in equity after the time for appeal or other direct attack has expired only if the alleged fraud or mistake is extrinsic rather than intrinsic [citations]. Fraud or mistake is extrinsic when it deprives the unsuccessful party of an opportunity to present his case to the court [citations]. If an unsuccessful party to an action has been kept in ignorance thereof [citations] or has been prevented from fully participating therein [citation], there has been no true adversary proceeding, and the judgment is open to attack at any time. A party who has been given proper notice of an action, however, and who has not been prevented from full participation therein, has had an opportunity to present his case to the court and to protect himself from any fraud attempted by his adversary. [Citations] Fraud perpetrated under such circumstances is intrinsic, ...”

The key for extrinsic fraud or mistake is whether there are circumstances extrinsic to the litigation itself that deprive the party of a fair hearing.  Estate of Sanders v. Sutton (1985) 40 Cal.3d 607, 614.  As the Supreme Court explained in In re Marriage of Modnick (1983) 33 Cal.3d 897, at 905, ‘[e]xtrinsic fraud is a broad concept that “tend[s] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” ’ See also Estate of Saunders (quoting and relying on In re Marriage of Modnick).  This may cover such circumstances as where the opponent’s deception or other acts prevented the party from presenting his case or knowing of the lawsuit, where the party relied on another to defend the action, where the party was mentally incompetent, or in other situations where excusable mistake and neglect result in an unfair judgment without a fair adversary proceeding.  Kulchar v. Kulchar (1969) 1 Cal.3d 467, at 471-472.  The court in Weitz v. Yankosky (1966) 63 Cal.2d 849, at 855-856, for example, found it appropriate to set aside a default based on the court’s equitable powers where the defendant had reasonably relied on an insurance company to defend him, even though more than a year had passed since the entry of default.  In another example, the court in County of San Diego v Gorham (2010) 186 Cal.App.4^th 1215, at 1229-1230, ruled that the trial court was required to use its equitable power to set aside a default judgment based on a false proof of service.

            It is not clear to the court that there has been no extrinsic fraud or mistake as DCSS argues.  DCSS cites the above authority but provides no evidence, discussion, or explanation of the facts of this matter.  The facts and procedural posture of this case are unlike those in William K.  The court notes that under Fam.Code section 7635.5, in a court proceeding, an alleged father has the right to ask for genetic testing to determine his biological relationship to a child.  It states,

In any action brought pursuant to this article, if the alleged father is present in court for the action, the court shall inform the alleged father of the alleged father's right to have genetic testing performed to determine the biological parentage of the child. The court shall further inform the alleged father of the alleged father's right to move to set aside or vacate a judgment of parentage pursuant to Section 7646 within two years of the date notice of the action to establish parentage is received, and that after that time has expired the alleged father may not move to set aside or vacate the judgment of parentage, regardless of whether genetic testing shows the alleged father not to be the biological father of the child.

            DCSS expressly contends that after the two-year statutory period a person may seek to set aside a voluntary declaration based on extrinsic fraud or mistake, but that the two-year deadline applies to intrinsic fraud or mistake.  It argues that in this instance Petitioner shows only intrinsic fraud or mistake.

            In this instance, the discussion and evidence presented indicate a possibility of extrinsic fraud or mistake.  The evidence does not demonstrate that there was any proceeding to determine parental relationship or enforce support obligations, or any other proceeding at all, until, as DCSS shows, Petitioner filed an answer to DCSS’s complaint on March 16, 2026.  DCSS claims Petitioner told a case worker on December 30, 2025, that he had learned “a while ago” that he was not the biological father of the child.  However, no supporting declaration was filed to support the existence of this conversation, and no further explanation was provided as to how this alleged conversation should relate to Petitioner’s motion.

            Respondent had asserted to Petitioner that he was the biological father at the birth, Petitioner relied on that without any proceeding, and the only court proceedings have been DCSS’s support action filed years later.  Nothing indicates that Petitioner knew of his rights or had any basis for knowing or understanding his rights, or any basis for challenging Respondent’s claims, at that time.  He did not fail to take action on this after court proceedings were instituted and in fact acted promptly once proceedings began.  Accordingly, the evidence indicates that, in the words of Stevenot, it is possible that Petitioner “has been kept in ignorance… or has been prevented from fully participating [in a proceeding], [and] there has been no true adversary proceeding….”  It is also important to note that the presence of intrinsic fraud does not preclude a finding of extrinsic fraud, as well. 

            The court also is concerned about Petitioner’s evidence that he has had no contact or visitation with the child.  There is no indication whether this is his choice or the choice of the mother or anyone else.  As noted above, while establishment of a parental relationship by signing a declaration imposes obligations, it also creates parental rights.  If Petitioner is to be considered the parent based on the Declaration, he will accordingly possess parental rights along with the support obligations.  Petitioner has the right to be informed of, and understand, these rights.

            The court also notes that there is no involvement by, or evidence from, the mother in these proceedings. 

            The court preliminarily finds that there may be sufficient basis for relief based on extrinsic fraud or mistake but, at this time, there is insufficient information for the court to make a proper determination.  The court therefore requires the parties to appear to address these issues and more fully discuss the circumstances of this case.

            The court also finds that, even if it finds Petitioner’s claims to be persuasive, it is premature to set aside the Declaration without first conducting genetic testing to determine parentage.  The court, should it grant the motion in any part, will therefore first grant it only to the extent of granting the request for genetic testing.  After that, the court will consider the further issues of whether there is a sufficient basis to set aside the Declaration or to leave the Declaration in place, in which case Petitioner will accordingly have both the obligations and the rights resulting from it.   

Conclusion

            Appearances are Required.     

 

4. SFL74532, Graham

Motion for Relief Under Code of Civil Procedure section 473(b) to Vacate the Orders GRANTED.

Facts

            Petitioner filed this action for dissolution of marriage with two minor children (the “Children”) on August 24, 2016.  The Children are still minors.  The parties have engaged in litigation over, among other things, both parties’ requests for a Domestic Violence Restraining Order (“DVRO”), custody, visitation, and child support. 

            Sonoma County Department of Child Support Services (“DCSS”) intervened regarding Petitioner’s child-support obligations.  In 2026, the court issued two Orders after Hearing (“OAH”) on motions regarding Petitioner’s child-support obligations.  On January 6, 2026, Petitioner filed a motion to pause or reduce the child support, and receive credit for support payments which he had made directly to Respondent.  The court set the hearing for January 28, 2026, but at that hearing, with all parties present, set the hearing on the motion for April 13, 2026.  The court also noted that the matter was set for a hearing on July 1, 2026, regarding a review of child support.  After the subsequent hearing for Petitioner’s motion on April 13, 2026, at which Petitioner was not present, the court noted that it was Petitioner’s motion and that he was not present, so it issued an order denying the motion (the “April OAH”).   At the hearing of July 1, 2026, Petitioner was again not present and the court noted his absence, adding that he had been present at the hearing of January 28, 2026, at which the court noted the hearing for July 1, 2026.  The court issued an order that day requiring Petitioner to pay child support (the “July OAH”). 

Motion

            In his Request for Order (“RFO”) and Motion for Relief Under Code of Civil Procedure section 473(b) to Vacate the Orders, Petitioner moves the court to vacate the April OAH and July OAH.  He contends that his failure to appear was the result of severe medical conditions requiring repeated emergency treatment and multiple hospitalizations.

            DCSS opposes the motion, asserting that Petitioner failed to contact DCSS or seek a continuance as he could have done and pointing out that Petitioner has provided no information about his medical issues in support of his claims.  It also argues that Petitioner was aware of the hearings and that it was in communication with him prior to the hearings regarding papers, reminders, and zoom instructions for the hearings. 

            Petitioner has filed a reply declaration.

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 support 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; see also CRC 5.2(d) (provisions applicable to civil actions generally apply to proceedings under the Family Code unless otherwise provided).  

            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). 

            Aside from a default where defendant fails to answer in time, a party may move to set aside an order that is the “procedural equivalent of a default,” and which deprives a party of his or her day in court.  Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 618.  It therefore applies, for example, to dismissal for failure attend a hearing or a plaintiff’s failure to oppose a motion to dismiss based on failure to prosecute.  Graham v. Beers (1994) 30 Cal.App.4th 1656, 1661; Peltier v. McCloud River R.R.Co. (1995) 34 Cal.App.4th 1809, 1817-1819.

            Where applicable, 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).

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.

“Surprise” is “some condition or situation in which a party... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.”  Credit Managers Ass’n of So. Calif. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173.

“Excusable neglect” comes down to whether the moving party has shown a reasonable excuse for the default.  Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.  The moving party must show that the default would not have been avoided through ordinary care.  Elms v. Elms (1946) 72 Cal.App.2d 508, 513.  The test ultimately is thus one of reasonable diligence.  Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58. 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. 

Significant health problems or family tragedies may be sufficient to support a showing of mistake, inadvertence, surprise, or excusable neglect.  Shapiro v. Clark (2008) 164 Cal.App.4^th 1128 (death of a son is sufficient excuse); Kesselman v. Kesselman (1963) 212 Cal.App.2d 196, 207-208; Fink & Schindler Co. v. Gavros (1925) 72 Cal.App.688 (illness sufficient excuse where party had tried to hire attorney before falling ill).

            In addition to relief based on CCP section 473, a court may set aside a judgment adjudicating support or the division of property in accord with Family code section 2120, et seq., and 3691.  Family Code sections 2120, 2121; see also In re Marriage of Zimmerman (2 Dist. 2010) 183 Cal.App.4th 900, at 910-911.

Discussion

            Preliminarily, the court notes that there is no dispute that Petitioner was aware of the upcoming hearings, a point which DCSS stresses in its opposition.  Petitioner filed the motion heard at the April hearing and he was present in court when the court set both hearings.  However, while Petitioner must provide a sufficient explanation to support relief despite his undisputed knowledge of the hearings, this is not dispositive.  The knowledge of the hearings, the certainty of the knowledge, and the amount of reminders or communications regarding the hearings are not a bar to relief under CCP section 473.  The number of reminders or communications about the upcoming hearings, which DCSS stresses as well, does not impact the analysis.  

            Petitioner presents an explanation which the authority, as set forth above, expressly states is a valid basis for relief under CCP section 473. 

            The court notes that throughout the several years of this litigation, Petitioner has generally taken an active part, appeared at hearings, filed motions and other applications, and denied those of the other parties.  His failure to appear at the April and July 2026 hearings is therefore unusual and inconsistent with his history of otherwise being actively involved in the litigation, and specifically hearings.  This is particularly true given that the April hearing was on his own motion.   This supports Petitioner’s version of events since his history of being active in the litigation until the few months of April through July 2026 lends additional credibility to his explanation. 

            Petitioner also filed this motion less than three weeks after the court entered the July OAH, further showing diligence.  This likewise supports Petitioner’s explanation. 

            Given the history of Petitioner’s involvement in this litigation, the court finds that the most plausible explanation for the failure to appear at the two hearings is not a lack of diligence but rather that an outside factor impeded his ability to attend the hearings.  The claim of medical issues is therefore persuasive.  

            DCSS argues that Petitioner fails to provide information about his claimed medical issues, but this is not persuasive here.  Petitioner does not provide documentary evidence or evidence other than his own declaration, but his declaration does provide a lengthy explanation with specific details regarding the medical issues, the procedures, and the dates and locations of the procedures.  He provides more details about the medical issues in his reply declaration, as well. 

            The court notes that Petitioner has not provided a copy of any proposed responsive pleading but in this instance, that requirement is inapplicable.  The April OAH was on his own motion and orders resulted from his failure to appear at the hearings.

            In light of the policies favoring relief, the nature of the claimed basis for the relief, the context, Petitioner’s general history of diligent involvement rendering the failure to appear at the two hearings an anomaly, Petitioner’s timely diligence in bringing this motion, and the details which Petitioner provides in his declaration, the court finds the motion to be persuasive.  The court GRANTS the motion.

Conclusion

            The motion is GRANTED.  The prevailing party shall prepare and serve a proposed order consistent with this tentative ruling within five days of the date set for argument of this matter. Opposing party shall inform the preparing party of objections as to form, if any, or whether the form of order is approved, within five days of receipt of the proposed order. The preparing party shall submit the proposed order and any objections to the court in accordance with California Rules of Court, Rule 5.125.