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)-521-6836 by 4:00 p.m. on the day before the hearing. Any party requesting an appearance must notify all other opposing parties of their intent to appear.

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1. 24FL01771, Petition of Hamilton

Motion to Drop Trial Dates DENIED.  The court accordingly sets the matter for trial as follows:

Facts

            Petitioners Lori and Douglas Hamilton (“Petitioners”) filed the instant petition for grandparent visitation to obtain an order allowing them to have visitation rights with the children of Respondent Alina Skolnik (“Respondent”).  Petitioners’ Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) states that the other parent, Ryan Hamilton (“Ryan”), is deceased.

            Respondent filed a Motion for Disqualification of Counsel and Firm Anderson Ziegler and Dismiss Action and Sanctions Under Family Code Section 271 on October 11, 2024.  This sought disqualification of Petitioners’ attorney and it sought dismissal on the basis that Petitioners had failed to meet their burden for their claims.  It also sought monetary sanctions.  At the original hearing on the motion on November 1, 2024, the court decided to continue the motion to consider additional briefs.  At the final hearing on November 15, 2024, the court denied the motion.  It found no basis for disqualification at that time and found that Respondent had failed to present legal or factual bases for dismissal.  Regarding dismissal, the court explained that Respondent was making factual assertions going to the claims presented in the petition, outside the scope of the pleadings, which were to be resolved in the trial on the petition.  The court also found that the motion was in essence a defective demurrer improperly brought in a family proceeding, and that Respondent had failed to demonstrate the grounds for a family-law motion to quash pursuant to California Rules of Court 5.63 and 5.74.

            The court held a hearing on December 5, 2024, after which it entered a ruling, filed January 14, 2025 (the “January 2025 Order”), giving Petitioners visitation time and making related orders.

            On March 10, 2025, the court ordered the January 2025 Order to be vacated in light of a ruling from the court of appeal. 

            The court held a hearing on March 17, 2025, at which it addressed with the parties the issue of scheduling an evidentiary hearing along with the nature and parameters of the hearing.  As a result, on March 19, 2025, the court set a half-day trial in the matter for May 8, 2025.   The parties subsequently filed briefs, exhibits, and motions in limine for that trial.  The trial commenced as scheduled on May 8, 2025, at which time the court heard and ruled on the motions in limine, among other things.  The court also noted that the parties stipulated that mother, i.e., Respondent, “is a fit parent.”  It also ruled on a request for judicial notice, the parties gave oral argument, and examination of one witness, Rachel Flores (“Flores”), took place.  The court then continued the matter to June 30, 2025, for a variety of reasons including issues of service and availability. 

            Respondent subsequently filed a new motion to disqualify Petitioner’s counsel based on new information regarding the witness Flores, who had worked for the firm of Respondent’s appellate attorney during the representation of Respondent, but who left to work at the firm of Petitioners’ attorney and became involved in the work on this action.  The court granted the motion after a hearing on May 30, 2025, but shortly before, on May 27, 2025, Petitioners’ original attorney substituted out and a new attorney with a different firm, Carla Hernandez Castillo, substituted in.  At the hearing of May 30, 2025, the court also declared a mistrial as a result of the issues regarding Flores.  

            As a result of the issues raised at the trial conference on June 20, 2025, the court vacated the trial dates, set the matter for a motion regarding Family Court Services mediation, and rescheduled the matter for a March 2026 hearing on trial status with trial set for April 2026.      

            Petitioners electronically served Respondent on February 24, 2026, with a Request to Drop Hearing, asking the court to drop the scheduled trial dates.  Petitioners asserted that no trial was needed because they were “withdrawing their motion.”  The Request to Drop was not actually filed until March 2, 2026, and the filing was vacated by the court the following day.  On February 24, 2026, meanwhile, Respondent filed an Objection to Dropping Trial, contending that the matter had already been set and continued, causing delays, and that she needs a final determination of the matter, specifically Petitioners’ request for visitation.         

            On March 56, 2026, the court held a hearing with the parties in which they addressed Petitioners’ pending request to drop the court trial and to withdraw their pending memorandum of points and authorities.  The court vacated the pending April 2026 trial dates and set the matter for a hearing of June 5, 2026, to address the request to drop the court trial. 

Motion

            This matter is now on calendar for Petitioners’ request to drop the trial.  They contend that the trial dates have already been dropped, they have tried to resolve the matter through a stipulation which could be entered as a judgment on their petition, but Respondent has not agreed, and there is no need to reset trial because they wish to avoid further unnecessary litigation.  They note that Respondent has requested that they dismiss their petition with prejudice, to which they have not agreed.  They further argue that Respondent has no “valid claim for affirmative relief” on the matter and that in such an instance, they as the moving parties retain the ability to withdraw their own motion. 

            Respondent opposes this motion.  She reiterates her position that the matter is the trial on Petitioners’ underlying petition and that she is entitled to a trial to adjudicate that petition and resolve the matter, instead of leaving the petition pending with no resolution in sight.  She asserts that she also made offers to resolve the matter through a stipulation, she has agreed to most of the proposed stipulation language which Petitioners sought, and she has not demanded dismissal with prejudice.  She argues that the “motion” is only a part of the litigation on Petitioners’ petition and that it is the petition which requires resolution.

            Petitioners have filed a reply, arguing that Respondent has asserted no affirmative relief and that the authority allows them to drop their motion.

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; In re Marriage of Zimmerman (2 Dist. 2010) 183 Cal.App.4th 900, at 910-911.

Petitioners rely in part on CCP section 581, governing dismissals of actions in general.  Subdivision (b) sets forth the circumstances in which the court may enter a dismissal of an action.  Among others, dismissal may be entered,

(1) With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any.

(2) With or without prejudice, by any party upon the written consent of all other parties.

In addition, subdivision (c) states, in full, “A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial.”  Subdivision (i) adds, “No dismissal of an action may be made or entered, or both, under paragraph (1) of subdivision (b) where affirmative relief has been sought by the cross-complaint of a defendant….”

The court in Guttman v. Guttman (2021) 72 Cal.App.5th 396 at 414-415, addressed the issue of when a plaintiff may not voluntarily dismiss an action where the opposing party has asserted affirmative relief.  It explained, ‘[a]ffirmative relief is “new matter that in effect amounts to a counterattack. The relief sought, if granted, operates not as a defense but affirmatively and positively to defeat the plaintiff's cause of action.” [Citation.]’

With respect to “commencement of trial” as a limitation on the ability to dismiss voluntarily, the actual meaning of this limitation is not strictly tied to the start of trial.  On the one hand, it encompasses dispositive motions such as demurrers or motions for summary judgment, once they have proceeded to determinations on those matters.  See, e.g., Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765.  On the other hand, this limitation does not immediately take effect on the very start of trial but rather after submission.  See, e.g., Reynolds v. Vidor (1941) 45 Cal.App.2d 685.

Discussion

            Preliminarily, Petitioners, as Respondent argues in her opposition, are conflating dropping a motion with dismissing a petition.  This confuses the issues before the court and affects the applicable standards.  Petitioners cite the authority for dismissing an action, in this case the underlying petition in which they seek visitation rights, but they discuss this as if they are simply dropping a motion, and they refer to the matter as a “motion.”  Ultimately, what is at issue here is the trial on the petition, not a motion.  Any specific motion being dropped in this litigation still leaves the petition pending, as Respondent points out.  Petitioners’ request to drop the trial and not reset it would simply leave the litigation unresolved and pending without any way to resolve it. 

            The court finds no basis for the request to drop the trial on the petition in this matter, legally or factually.  Should Petitioners seek to dismiss their petition pursuant to CCP section 581, then they may request to do so.  There is no requirement that they do so with prejudice, but until they dismiss their petition, or a judgment is entered on the petition, the matter remains pending, and a trial is required, the presence of a pending motion being immaterial on that point.

            The court makes no determination at this time as to the ability of Petitioners to dismiss their action since that is not before the court.  The court notes that Respondent does not appear to seek “affirmative relief” with respect to the petition itself.  The motion to which she refers merely presented a rebuttal or defense to the claims of the petition because Respondent was asserting that Petitioner had failed to meet their burden.  This court ruled that those issues were to be resolved in a hearing or trial on the petition.  Otherwise, Respondent has only sought sanctions on collateral matters, including the issues related to disqualification of counsel.  The request for sanctions appears still to be pending and requires resolution but is not affirmative relief with respect to the petition claims.  No party claims that Petitioners no longer have a right to voluntary dismissal because of the start of trial, another potential limitation on the ability to dismissal as noted above.  Although the initial trial had commenced with motions in limine and a brief start to the introduction of evidence, it went no further before the court declared a mistrial.  No new trial has commenced and there has been no completion of evidence or submission to the court.   

            Should Petitioners wish to dismiss their petition, that is the action which they must take. Dropping a “motion,” apparently for a hearing on the petition, is immaterial with respect to whether the litigation will continue on the petition.  Should Petitioners continue to pursue the claims in their petition, the matter must be resolved and absent a stipulated judgment or other resolution, this will require a trial.  Unless, and until the petition is dismissed or otherwise adjudicated, a trial on the petition is required.      

Conclusion

            The court DENIES the motion.  The court notes that Respondent has, in her opposition, requested that the court in denying the motion also reset the matter for trial. The court finds it appropriate to do so and hereby sets the matter for trial setting as follows: August 21, 2026 at 9:00am in department 20.

            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.     

2.25FL02585, Dennis Dissolution

Motion to Quash Service of Summons due to improper service DENIED for the reasons stated below. 

Facts

            Petitioner filed her petition for dissolution of marriage without minor children on December 10, 2025.  The petition seeks determinations of separate, community, and quasi-community property.  The same date, she filed form FL-160 Property Declarations and a form FL-150 Income and Expense Declaration (“IED”).  She filed form FL-141 Declaration Regarding Service of the Declaration of Disclosure and IED on January 21, 2026, showing that the documents were personally served on Respondent on January 14, 2026.  She filed Proof of Service for the summons and petition on January 22, 2026, showing personal service on Respondent on January 14, 2026, at 6956 W Wise Rd, Lincoln, CA.

            Respondent had failed to appear by February 26, 2026, when Petitioner requested entry of default.  The court entered Respondent’s default as requested.   On April 29, 2026, the court entered judgment upon the default based on Petitioner’s request. 

Motion

            In his Request for Order (“RFO”) and Motion to Quash Service of Summons due to improper service, Respondent moves the court to set aside the default judgment and quash service of the summons and petition alleging he had not been properly served and did not have the full required time for responding.  He contends that the petition and summons “were left outside in the open under a fire pit on the front porch of [his] residence… unbeknownst to” him, and the papers were not handed to him or anyone else in the residence.  He claims that upon discovering the “weathered” documents, he “immediately began to compile the necessary information and on Wednesday, February 25, 2026, drove from Lincoln to Santa Rosa to file his response.  He contends that when he tried to file the response, the clerk told him that he needed to serve Petitioner before filing, so he immediately drove to her work in Petaluma to personally serve her, before driving back to the courthouse to find it closed.  He then returned home to Lincoln and the next day, February 26, 2026, returned to Santa Rosa to file the response and proof of service.  As the clerk was processing his documents, he contends, she received an alert that Petitioner had just filed the default so the clerk told him that she was unable to complete filing the response.  He asserts that Petitioner entered the default “within 30 days” of him discovering the summons and petition and contends that he therefore had less than the required 30 days from discovery the documents, but he does not state when he discovered the documents.  

            Petitioner opposes the motion.  She contends that she hired ABC Legal to serve the summons and complaint and that the proof of service for these shows proper personal service.  She also argues that the motion to quash is untimely pursuant to Code of Civil Procedure section 412.20, and Respondent had sufficient notice and opportunity to respond to the petition.  She also contends that she was in Las Vegas on the date on which Respondent claims to have personally served her. 

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, 910-911. 

CCP section 473(b) allows plaintiffs and defendants to set aside dismissals or defaults based on mistake, inadvertence, surprise, or excusable neglect.  CCP section 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).

This motion must normally be made within a reasonable time, not to exceed 6 months from the date the order was entered.  CCP section 473(b).  The motion must be brought within six (6) months and the grounds for seeking the relief do not affect the deadline.  Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4^th 333, 345. 

CCP section 473.5 provides the authority for setting aside a default or default judgment where service of the summons did not provide actual notice in time to defend the action.  This motion must be brought within a reasonable time, not more than the earlier of two (2) years after entry of default judgment or 180 days after service of written notice of default.  CCP section 473.5.  This is in contrast to motions under CCP section 473(b), which must be filed within six (6) months of the entry of the order or default or judgment, whichever is at issue.

Section 473.5 provides relief where service may have been proper but did not result in actual notice in time to defend the action.  See Randall v. Randall (1928) 203 Cal.462, 464-465.  The defendant or respondent is thus entitled to relief as long as the party did not receive actual notice, and imputed or constructive notice does not suffice.  Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895.  However, the party must show that the lack of notice was not the result of inexcusable neglect or avoidance of service on his or her part.  Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1077-1078.  Upon finding that defendant lacked notice in time to defend and that the lack of notice was not the result of the defendant’s neglect or avoidance of service, the court may set aside the default or default judgment “on whatever terms as may be just.”  CCP section 473.5(d).

The moving party “shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.”  CCP section 473.5(b).  In contrast to a motion under CCP section 473(b), however, this requirement lacks the language stating, “otherwise the application shall not be granted.”

A judgment may be set aside where void pursuant to CCP section 473(d).  Such an order may apply where there is lack of actual or constructive notice and no valid service.     Lovato v. Santa Fe Int’l Corp. (1984) 151 Cal.App.3d 549, 553 (void for lack of notice where discovery requests served only on defendant’s attorney, who had been suspended by state bar and lacked authority to represent party); Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313 (lack of proper service renders judgment void).  Where the judgment is void, the moving party need not show a meritorious defense.  CCP section 473(d); Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 86-87.  However, where the motion is based on lack of, or improper, service, where there has been actual notice, substantial compliance with the service requirements will defeat a motion to vacate.  Gibble, supra.          

CCP section 418.10(a)(1) states that a defendant or respondent, on or before the last day to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion to quash service of summons on the ground the court lacks jurisdiction.

Personal service is complete and proper where the defendant tries to avoid or refuse service as long as the server identifies himself or herself, tells the party that he or she is being served with process, and leaves the papers as close as possible to the recipient.  Trujillo v. Trujillo (1945) 71 Cal.App.2d 257, 260.  As long as defendant or respondent receives actual notice of the lawsuit, substantial compliance with the service requirements is sufficient.  Pasadena Medi-Center Associates v. Sup.Ct. (1973) 9 Cal.3d 773, 778.  On the other hand, where the party is not knowingly attempting to evade or refuse service, it is improper simply to leave the papers with near the person or with someone else in the vicinity.  Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 833. 

Discussion

            Respondent does not set forth the authority for this motion, but he does expressly state that he is moving the court to vacate the default judgment and to quash service.  The governing authority for such relief is set forth above.

Timeliness

            Petitioner argues that the motion is not timely because a motion to quash must be filed within 30 days of service, the time for filing an answer or response.  However, the court finds this argument to be unpersuasive here.  First, Respondent bases his motion on the assertion that he was not properly served and did not have sufficient notice, so that he attempted to respond as soon as he discovered the service on him.  He is not moving to quash due to other grounds, such as lack of personal jurisdiction despite proper service and notice.  Respondent also, and more critically, is moving to vacate the default judgment, for which the 30-day deadline from service does not apply, as noted above.  The court finds the motion to be timely for these reasons.   

Sufficiency of Service and Notice

            That said, the court finds there to have been adequate notice and proper service of the summons and petition.  Although Respondent raises a potentially valid argument and circumstances, he fails to present sufficient evidence, detail, or explanation to be persuasive.  For example, he does not state when he discovered the summons and petition and he does not directly refute the process server’s statement that he personally served Respondent at the residence.  Respondent also admits that the service took place at his residence.  Moreover, even if Respondent’s moving papers were sufficiently persuasive and credible, the record of the proof of service combined with Petitioner’s evidence persuades this court that Respondent was properly served by personal service and had actual notice in time.  The filed proof of service on its face shows proper, valid personal service.  Petitioner in her opposition also includes additional evidence from the process server which are consistent with the stated service and demonstrate proper personal service.  These include the process servers detailed records with a statement describing the service, circumstances, person served, and location.  The records show that the person served knew of the server, talked to the server, was told of the service, tried to refuse service, and refused to take the documents.  The records show that the server then, in view of the person being served, left the documents at the residence.  The records include photographs of the residence and the events of the service.  The court finds Petitioner’s evidence and the information from the neutral process server to be credible, complete, and detailed, while Respondent’s statements conflict with this more detailed and documented evidence and lack enough detail to be credible or persuasive. 

Other Grounds to Vacate the Default Judgment

            Respondent contends that he tried to file his response as soon as he could after obtaining the necessary information, but he is not persuasive that the default was entered despite his due diligence.  Respondent does show a potentially valid basis for setting aside the default with respect to his failed efforts to file the response resulting in a default being entered as he was trying to file the response affiant the next day.  However, he admits that his initial effort to file the response was already more than 10 days after the 30-day deadline for responding and, as noted, he fails to state when he discovered the service or otherwise contradict Petitioner’s showing of proper service and notice on January 14, 2026, approximately 42 days earlier.  His claim that he was delayed by personally serving his response on Petitioner lacks credibility in light of Petitioner’s evidence, including copies of airfare and flight information, showing that she had left on a flight to Las Vegas that day and did not return until the next day.

            Under the circumstances, the court finds Respondent’s request to set aside the default judgment to lack sufficient credibility and persuasiveness, even though it states a potentially valid basis for such relief. 

Conclusion

At this time, no part of this motion is sufficiently credible or persuasive and the opposition, by contrast, has the support of clear court records and more detailed complete information and documentary support.  Had Respondent provided more complete details, evidence, and explanation, the court may have been inclined to grant the motion at least with respect to setting aside the default judgment even if it had not quashed the service, but it finds Respondent insufficiently credible. 

The court DENIES the motion in full. 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.