Family Law Tentative Rulings

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. SFL49153 Lambert v Lambert

Facts

            In June 2025, Petitioner filed a request for Domestic Violence Restraining Order (“DVRO”), restraining Respondent.  The court held a hearing on a temporary DVRO on July 1, 2025.  Both Petitioner and Respondent appeared at the hearing and the court found that Respondent had notice of the hearing.  However, at the request of all parties, it continued the matter to August 5, 2025 and ordered Respondent to be personally present at the next hearing.  In its order continuing the matter, the court specifically noted that further notice was not required.

            At the hearing on August 5, 2025, Petitioner and Respondent were both present, with Respondent present in person in accordance with the court’s prior order.  The court held the hearing and granted Petitioner’s request, issuing a three-year DVRO restraining Respondent. 

Motion

            In her Request for Order (“RFO”) and Motion to Set Aside DVRO and to File a Response DV 120 for Excusable Neglect, Respondent moves the court to set aside the DVRO.  She contends that she was not properly served with the DVRO request and thus had no time to prepare an opposition, because it was delivered at her residence the night before the hearing while she was out.  She also contends that both Petitioner and his attorney “have spent 15 years lying and manipulating this court system.”  She seeks relief based on Code of Civil Procedure section 473 due to mistake, inadvertence, surprise, or excusable neglect. There is no proof of service of the RFO. 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.  In re Marriage of Zimmerman (2 Dist. 2010) 183 Cal.App.4th 900, 910-911. 

CCP section 473(b) allows parties to move the court to set aside dismissals or defaults or the equivalent.  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.  The provision should be liberally construed in order to afford relief.   See, e.g., Goodson v. Bogerts, Inc. (1967) 252 Cal.App.2d 32;  Hansen v. Hansen (1961) 190 Cal.App.2d 327;  Reed v. Williamson (1960) 185 Cal.App.2d 244.

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

Although she does not rely on it, CCP section 473.5 provides the authority for setting aside a default, judgment, or equivalent order where service of the summons did not provide actual notice in time to defend the action.  Section 473.5 provides relief where service may have been proper on the face of the record 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. 

Service

            There is no proof of service of the RFO but Petitioner has filed an opposition on the merits without claiming lack of notice or service.

Discussion

            Respondent’s motion is unpersuasive.  She contends that service of notice of the hearing was not proper and that she therefore lacked sufficient time to prepare a defense.  However, her argument does not present the type of situation which is a basis for relief pursuant to CCP section 473 and her contentions, in any case, factually and legally fail to support relief under any basis. 

            Instead of presenting a situation equivalent to a default, for which section 473 relief is available, Respondent is relitigating the substance of the issues argued at the DVRO hearings.  She appeared, and provided argument, at both of the hearings on the DVRO request.  She appeared at the original hearing on the DVRO request and presented arguments, specifically raising the very argument regarding notice.  At that hearing, the court already found that Respondent had received sufficient notice.  The court, with Respondent present, also continued the hearing in accord with the agreement of all parties, thereby giving her additional time to prepare a defense.  Respondent then appeared at the subsequent hearing and again presented her position, which this court then rejected as unpersuasive.  Therefore, this is not the type of situation, a default or equivalent, for which relief is available under section 473.          

            Even if such relief were available pursuant to section 473, or if Respondent had properly brought this motion on a different legal basis or provision which could afford her relief, her arguments are still lacking in any legal or factual support.  As explained, she appeared at the original hearing and presented arguments.  The court then continued it in accord with her own agreement, which also allowed her additional time to prepare a defense.  Service was also sufficient on its face.  She therefore had both actual and legally sufficient notice with full opportunity to defend against the DVRO request.  Respondent also fails to demonstrate any other basis for relief or, specifically, mistake, inadvertence, surprise or excusable neglect.  Aside from the alleged improper service, she asserts that some developments at unspecified times, including health emergencies for her husband and mother in law, interfered with her ability to defend against the DVRO. These issues do not support the relief.  First, these assertions are unclear about the timing or the impact on her ability to defend against the DVRO.  Second, once again there is no dispute that she had in fact appeared at the original hearing; the court already found notice sufficient at that time; the court continued the matter to a later hearing in accord with Respondent’s own agreement; and, Respondent presented her arguments again at the second hearing. Not only were service and notice sufficient, but this court already found them to be so. She presents no legal or factual basis for altering that decision, and the continuance pursuant to her own agreement on the record cured any possible defect in notice or service, had there been any.

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.