Family Law Tentative Rulings - Courtroom 21

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) 521-6604 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. 

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To appear via Zoom by phone:

• Call: +1 669-254-5252
• Enter the Meeting ID: 160-223-6856
• Passcode: 876992

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

1. SFL075445, Leon v. Leon
   NO APPEARANCES REQUIRED. The parties have indicated that an agreement has been reached.
    
2. SFL091853, Cuadras Segura v. Gallagher
   Motion to Set Aside Default DENIED.

            Petitioner filed this action for dissolution of marriage with minor children on August 18, 2022.  He also filed a Declaration Under Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) as well as a proof of service for the Summons, Petition and UCCJEA declaration, showing that he personally served Respondent with these on November 6, 2022.  Petitioner filed a declaration regarding service of his preliminary declaration of disclosure (“PDD”) on March 6, 2023, but no other activity occurred in this action until Petitioner filed a Request for Order (“RFO”) and motion to bifurcate the issue of status from other issues.  Respondent, who had not appeared up to that time, filed a declaration in response to the RFO on April 24, 2024, making several assertions about their relationship and opposing bifurcation.  She did not file a response to the petition.  Both parties attended the hearing on the RFO on May 17, 2024, at which this court granted the motion to bifurcate and to enter judgment of status.  The judgment regarding marital status was subsequently entered on May 21, 2024.    

            No further activity occurred in this litigation until May 7, 2025, when Petitioner filed an amended Petition and Summons.  He subsequently filed a proof of service showing that he personally served Respondent with these documents at the courthouse on May 16, 2025.  Respondent, who had never filed a Response to the original petition, filed no Response to the amended Petition.  Eventually, on June 17, 2025, Petitioner requested entry of default and the Court granted the request.

            Respondent filed an RFO and Motion to Set Aside Default (CCP §473(b)), in which she moved the court to set aside the default.  At the original hearing for the motion on October 2, 2025, the court continued the motion because Respondent had not filed a proof of service for the motion or notice of the hearing.  The court directed Respondent to file a proof of service prior to the new hearing.  By the time of the new hearing for the motion to set aside on December 18, 2025, Respondent had still not filed a proof of service. The court therefore dropped the motion.   

Motion

            In a new RFO and Motion to Set Aside Default (CCP §473(b)), Respondent again moves the court to set aside the default.  As before, she contends that Petitioner’s attorney never informed her “that legal documents were being served” or that “any action had been taken to request or enter a default judgment” or that a deadline for responding was approaching.  She also contends that the amended Petition served on her did not include a UCCJEA Declaration, making service incomplete and failing to give her full notice of all documents to which she needed to respond.  She contends that therefore she had no “fair chance” to defend herself or participate in the proceedings. 

         Petitioner opposes the 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 (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. 

CCP section 473(b) allows parties to move the court to set aside dismissals or defaults.  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 “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.  Id.  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. 

            “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.  Simply forgetting about the lawsuit or being too “busy” is not adequate.  Andrews v. Jacoby (1919) 39 Cal.App. 382, 383-384. 

Discussion

            The motion is not persuasive.  As set forth above, the record shows that Petitioner properly served Respondent with both the original and amended Petition and Summons, as well as the UCCJEA declaration, PDD, and other documents.  The record itself also shows that Respondent knew of the litigation for several years, actively participating in the litigation.  She opposed the RFO by which Petitioner sought bifurcation and a status-only judgment, and she appeared at the hearing on that RFO.  However, she never filed a Response; she opposed even a status-only judgment; and took no action to move the case forward.  In his declaration opposing the motion, Petitioner further demonstrates that he served Respondent with the required documents and that Respondent was aware of the litigation.

            Respondent also claims that she was not notified that Petitioner would seek to enter her default, but the request for entry of default demonstrates service on her.  Moreover, actual notice of the intent to enter default, although a factor for the court to consider in determining whether to set aside a default, is not necessary.  The required notice is notice of the litigation and the pleadings on which the default is to be entered.  It is clear that Respondent had such notice and she does not claim otherwise. 

            The court finds the motion to be unpersuasive. 

Conclusion

The court DENIES the motion.  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.
 

3. 23FL00649, Gutierrez Morales v. Silver
   APPEARANCES REQUIRED.
    
4. SFL092691, Van Groos v. Van Groos
   Motion to Bifurcate and Terminate Marital Status GRANTED. Petitioner shall complete all documents to enter Judgment.
    
5. 25FL01861, Dupre v. Dupre
   Motion To Be Relieved As Counsel by Attorney Conway GRANTED.
6. 25FL01237, Carter v. Schelbrack
   Motion to Compel Financial Disclosure and Production of Documents DROPPED.  The court finds the motion to be moot based on Respondent’s declaration showing that she has now served her Preliminary Declaration of Disclosure.