October 15, 2018

Family Law Tentative Ruling Announcements

Please note that the family court issues tentative ruling announcements on the court day prior to the scheduled hearing for specific types of motions. Tentative rulings are only provided on the Internet and posted in the clerk’s office lobby. Internet postings occur at 1:30pm daily at www.stanct.org.

Parties are not required to give notice of intent to appear to preserve the right to a hearing. The tentative ruling will not become final until the hearing. (Stan. Cnty. Local Rules, rule 7.05.1) However, as a courtesy to the Court, and other parties or counsel with matters on calendar, notice of intended appearance or non-appearance is encouraged and may be sent by e-mail to the following address: familylaw.tentatives@stanct.org between the hours of 1:30 P.M. and 4:00 P.M. If you do not receive a confirmation e-mail from the clerk, you may call to speak directly with a Calendar Clerk at 209-530-3107.

Any party filing pleadings or documents on a tentative ruling matter within five (5) days of the hearing should provide a courtesy copy to the Courtroom Clerk and the Court’s Family Law Research Attorney by placing a copy in the drop box slot on the door of Room 223, Second Floor of the main Courthouse. Failure to do so may prevent the Court from consideration of such, may result in a continuance, and/or may be considered in the award of conduct-based fees and costs. (Stan. Cnty. Local Rules, rule 7.05.1(B).)

All parties and counsel are required to meet and confer in a good faith effort to resolve the dispute on any request, motion or hearing, with the exception of those involving domestic violence, and to exchange any documents upon which reliance will be made at the hearing. (Cal. Rules of Ct., rule 5.98; Stan. Cnty. Local Rules, rule 7.05.1(C).) Failure to do so may result in a continuance and may be considered in the award of conduct-based fees and costs, or both. If sufficient information regarding an adequate pre-hearing meet and confer effort is not provided in the moving and opposing papers, in the Court’s discretion, the matter may be placed at the end of the calendar and not called until the parties or counsel advise the Court that they have complied with their obligations and/or resolved the matter.

Date: October 15, 2018                                 

The following are the tentative ruling cases calendared before Judge Alan Cassidy in Department #11:

8005968 - BABB VS. BABB

Respondent’s request for orders (RFO) re reconsidering granting of temporary domestic violence restraining order (DVTRO)—DENIED

While the court has inherent discretion to reconsider its April 16, 2018 order granting the DVTRO (see, e.g., Le Francois v. Goel (2005) 35 Cal.4th 1094), respondent’s RFO presents no reason why reconsideration is proper.  On sua sponte reconsideration, the court is limited to only that evidence that was before it when the ruling that is being reconsidered occurred.  (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1470; In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1308-1309.)  Therefore, the only argument the court can consider regarding service is the argument that was made at the April 16, 2018 hearing, which was that service was defective because no blank responsive declaration accompanied the other documents respondent received.  The court cannot and will not consider the new contentions that respondent was also not served with a declaration supporting the request for DVTRO or that the copy of the DV petition with which he was served was blank.  The court confirms its April 16, 2018 ruling that service was sufficient even without the blank responsive declaration, which is a form that would have been readily available to respondent’s counsel before the April 16, 2018 hearing.  In particular, the court notes respondent has made no allegation about how or why the lack of a blank responsive declaration actually prejudiced him.  (See, e.g., In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419 [“The lack of strict compliance with [a statute describing notice to be given in dependency cases] in the absence of prejudice, does not render the subsequent proceedings void.”].)  Here, respondent has offered no way in which the failure to serve a blank responsive declaration kept him from presenting his case.  The same analysis applies to respondent’s contention that he should have been allowed to call the process server as a witness.  While Family Code section 217, subdivision (a), allows family law litigants to present live testimony, subdivision (b) of the same statute allows the court to disallow live testimony upon a finding of good cause stated on the record.  Here, having the process server testify to not serving the blank responsive declaration is irrelevant because, as described above, service was sufficient even with this defect.  (See Cal. Rles of Court, Rule 5.113(b) [listing factors for excluding live testimony, including “[w]hether material facts are in controversy,” [w]hether live testimony is necessary to assess the credibility of the parties or other witnesses,” or “[a]ny other factor that is just and equitable”].)  Respondent’s request for attorney fees as sanctions is denied for inadequate documentation.

The following are the tentative ruling cases calendared before Judge Valli K. Israels in Department #13:


Third-Party’s Notice of Motion re Joinder—DENIED, without prejudice.

A presumptively permanent order awarding sole legal and physical custody to Petitioner was made on May 31, 2018.  Consequently, the Court may not order joinder over Petitioner’s objection in the absence of proof by clear and convincing evidence presented by Third-Party that court-ordered grandparent visitation is in the best interest of the minor children.  Moreover, Third-Party has not filed proof of service as to Respondent and valid service of both parents must be demonstrated.  (Fam. Code § 3104; Cal. Rules of Court, rule 5.24(a)(1)(B); Local Rules, rule 7.71.1(B)(3); Marriage of Harris (2004) 34 Cal.4th 210, 222.)  That said, if Respondent appears and waives service, and Petitioner appears and is willing to stipulate to any visitation, the Court may, in its discretion, grant joinder and order the matter referred for mediation so that the parties’ agreement may be reduced to writing.  Absent this, Third-Party will need to file a new motion and have it properly filed and served on both parties.

The Self-Help Center offers free help to people who are representing themselves in Court in a variety of legal matters.  Assistance is provided daily on a walk-in first-come, first-served basis.  Office Hours are Monday – Thursday, 8:00 a.m. to noon and 1:00 p.m. to 4:00 p.m., and Fridays 1:00 pm to 4:00 pm.  Location:  800 11th Street, Room 220, Modesto, California.

The following are the tentative ruling cases calendared before Judge Jack M. Jacobson in Department #14:


Respondent’s request for orders (RFO) re proof of paternity— DENIED

Based on the proof of service indicating respondent was served with the RFO on September 29, 2018, the court finds service is inadequate because petitioner failed to ensure that respondent had at least 16 court days’ notice of the October 15, 2018 hearing.  (Fam. Code, § 210; Code Civ. Proc., § 1005, subd. (b).)  In addition, the court is aware that petitioner signed a voluntary declaration of paternity regarding the minor child, who was born in 2013.  Family Code section 7575 authorizes a “motion for genetic tests” within two years of the child’s birth.  (Fam. Code, § 7575, subd. (b)(3)(A).)  Here, petitioner admits the child has already turned 4.  The RFO is therefore untimely and the court cannot entertain a challenge to paternity at this time.  (See, e.g., County of Orange v. Superior Court (2007) 155 Cal.App.4th 1253.) 

The following are the tentative ruling cases calendared before Judge Kellee Westbrook in Department #25:

FL-18-000533 - MATTOX VS. HAGER

Respondent’s Request for Order re Set Aside Default—DENIED, without prejudice.

Respondent is incorrect that the default in this case was entered on July 9, 2018, which is that the date the request for entry of default was filed.  In fact, Respondent’s default was not entered by the clerk of the Court until July 30, 2018, long after Respondent’s responsive pleading was due.  Regarding relief based on Code of Civil Procedure section 473, subd.(b), Respondent makes no showing of mistake, surprise, inadvertence or excusable neglect other than his erroneous belief about the entry of default.  Of course, within the time constraints of this section, nothing prohibits Respondent from filing a new motion with an appropriate factual and legal basis.

8004191 - BURDEN VS. EWER

Third-Party’s Notice of Motion re Joinder—GRANTED.

There being no opposition and joinder being appropriate pursuant to Family Code section 2021 and California Rules of Court, rule 5.24(c)(1), the motion is granted.  Third-Party shall follow the procedures identified in rule 5.24(e)(3), regarding issuance of summons re joinder and the filing and service of an appropriate pleading.  Petitioner and Respondent shall have thirty (30) days to file a responsive pleading, if any, to the complaint in joinder.

8003650 – CONDE VS. CONDE

Petitioner’s request for order (RFO) re control of property – APPEARANCE REQUIRED

The parties are ordered to appear to state their positions and present evidence.  Petitioner is to prove valid service of her RFO on respondent.  Each party is to be prepared to present evidence regarding income and assets so that the court may appropriately decide whether there is support for an order making a pendente lite distribution of assets that are presumably subject to arbitration. 


Attorney for Respondent’s Motion to Be Relieved—APPEARANCE REQUIRED.

Counsel’s declaration asserts mail service at the client’s last known address but fails to establish that telephone calls to the client’s last known numbers without response satisfy the diligence necessary for the Court to find that the address in question is “current.”  If counsel supplies satisfactory evidence regarding notice and service, or if the client appears in person, then the Court is inclined to grant the motion conditioned on filing proof of service of the proposed order on the client.  (Cal. Rules of Ct., rule 3.1362(e).)


Petitioner’s Request for Order re Motion to Compel, etc.—APPEARANCE REQUIRED.

The Court finds that an informal resolution of the discovery dispute was not resolved and that good cause exists for an Informal Discovery Conference (IDC) to be held within thirty (30) days of this Order, that all pending or additional discovery and any deadlines associated therewith be stayed pending outcome of the IDC, and that the status and joinder motions shall trail completion of the IDC.  (Code Civ. Proc. §§ 2016.040, 2016.080.)  Counsel may assert any objections to the IDC or request any other “appropriate” discovery order at the hearing.  (Id.)  The IDC shall not prejudice the outcome of any pending motion and this Order does not restrict the parties from otherwise stipulating to the timing of discovery.  (Id.)  Counsel shall be prepared to discuss mutually convenient dates and times for the IDC.  Counsel for Petitioner, being out of state, may request telephonic appearance at the IDC based on a showing of good cause, though personal presence is desirable.