June 18, 2018

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Family Law Tentative Ruling Announcements
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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: June 19, 2018                                                                                                                           


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

8003772 - HOLLAND VS HOLLAND

Petitioner’s Request for Order re Elisor, etc.—GRANTED, and unopposed.

Based on the declaration of Petitioner and accompanying exhibits, as well as the absence of opposition by Respondent, the Court finds that the community’s interest in the subject residence to be at risk of loss of value due to Respondent’s non-cooperation and refusal to sign the agreements necessary to effectuate the order for listing and sale provided by the parties’ judgment filed on January 10, 2018.  Accordingly, the request for temporary exclusive possession by Petitioner and the appointment of the clerk to act as elisor on Respondent’s behalf is GRANTED.  Petitioner shall modify the proposed order so that (1) the elisor shall be designated as “The Clerk of the Court or Clerk’s Designee,” (2) the person on whose behalf the elisor is to sign shall be designated by legal name in addition to party status, and (3) only documents attached to the final order signed by the Court shall be subject to elisor signature and shall match any documents submitted to the Clerk or Clerk’s Designee prior to signature; documents such as the contract of sale, escrow instructions, disclosures and any deeds that are premature may be attached in exemplar form but filled out as if final.  (See, Local Rules, rule 7.05.2 “Appointment of Elisors.”) 

Should it be necessary, Petitioner may apply by ex parte application for an order approving any additional documents necessary to sale as to which an elisor is required, or approving any differences in the names for Petitioner or Respondent as contracting parties that differ from their names as identified in this action and, if time be of the essence due to escrow close or other contingency, Petitioner may request an order shortening time for the ex parte application.

8009802 - NIJJAR VS NIJJAR

Respondent’s Request for Order/Motion re Dismissal and Expungement of Lis Pendens; Sanctions, etc.—GRANTED.

As a threshold matter, the Court finds that Respondent’s sanctions motion has been properly noticed and served in conformity with the “safe harbor” provision of Code of Civil Procedure section 128.7, subd.(c)(1).  Conversely, the Court finds that Petitioner’s counter-request for sanctions under the same section was not timely noticed and was improperly filed and served.  (Id.)  It is denied.

Respondent’s Request for Judicial Notice is proper and unopposed; the Court will therefore take judicial notice of the attached documents as court records.  (Evid. Code §§ 452(d), 453.) 

Further, on its own motion, the parties are hereby notified, as they were when the Tentative Ruling on these motions originally posted at the initial setting, that the Court proposes to take judicial notice of additional court records, as follows: (A.) Stanislaus Superior Court Case No. 692837 – (1.) Minute Order re Court Trial of February 9, 2018 [denial of putative spouse petition]; (2.) Notice of Hearing filed April 5, 2018, Attachment 10, Exhibit 1 [Notice of Pendency of Action recorded 3-13-18 re Case No. 8009802]; (3.) Decision/Trial re Marital Status of Petitioner, etc., dated June 30, 2016; (4.) Opinion of Fifth District Court of Appeal (Unpublished), lodged December 7, 2017; (B.) Stanislaus Superior Court Case No. 8005787 – (1.) Family Law Case Management Conference Order re hearing of June 23, 2017 [Appearances/Dismissal No. 12].  (Evid. Code §§ 452(d), 455(a).)  Petitioner and Respondent are or were parties in both actions, and are or were represented by their present counsel in each.  As such, all parties and counsel have, or have available to them, the court records proposed to be judicially noticed and, as to the majority of the hearings, were personally present.  Consequently, the Court finds that this notice affords the parties a “reasonable opportunity” to present information to the Court at the hearing relevant to the propriety of notice and the tenor of matters to be noticed.  (Evid. Code § 455(a).) 

Respondent moves for an order awarding monetary sanctions and dismissal of the petition based on Code of Civil Procedure section 128.7, subd. (b), arguing that the petition was filed for an improper purpose, that the claims and legal contentions are legally frivolous, and is lacking in evidentiary support.  Respondent also argues that the petition is barred under the doctrine of res judicata.  Respondent further argues that Petitioner’s recorded lis pendens should be expunged for procedural defects regarding notice, among other things.

Petitioner filed opposition originally, but did not serve it in a timely or proper manner.  (Code Civ. Proc. § 1005(b), (c).)  The Court therefore has discretion to disregard the defectively served opposition.  (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836.)  Petitioner’s subsequently filed opposition addresses only the lis pendens issue.  Considering the absence of further opposition as to Respondent’s other requests, and Respondent’s choice not to submit a reply, the Court will disregard the untimeliness of the initial opposition and deem the briefing as it presently stands to be complete.

Petitioner first argues that Respondent lacks standing to file the motion because, apparently, in the caption Respondent was not identified as “Sawarn Nijjar, by and through Heather Fisher” (sic.).  The argument is devoid of merit.  The conservatee is, needless to say, incapacitated and therefore, as conservator of the estate, Respondent clearly has standing.  (Prob. Code §§ 2420, 2462, 2450; Code Civ. Proc. § 372(a)(1); Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1148; Klopstock v. Superior Court (1941) 17 Cal.2d 13, 18-19; Friendly Village Community Ass'n v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 224.)

Petitioner next argues that Family Code section 2251 does not require the existence of a void or voidable marriage, as asserted by Respondent, in order to obtain the status of putative spouse sought by her petition.  Petitioner offers only one citation in support of her argument: In re Marriage of Garcia (2017) 13 Cal.App.5th 1334.  Petitioner’s reliance on Garcia is misplaced.  Section 2251 is only mentioned in a footnote, and without substantive comment at that.  (Id., fn. 4.)  Moreover, the holding—that dismissal of a dissolution petition is not res judicata as to a subsequent nullity action because the two involve distinct “primary rights,” irrespective of whether the remedies related to support, custody and property are identical (Id., at pp. 1348-49)—has nothing to do with this motion.  In fact, the ratio decidendi of the case is that dissolution entails rights created after marriage, whereas nullity concerns rights arising before (or contemporaneously with) marriage.  Ironically, by this logic, the prior judicial determinations in the related cases are necessarily based on grounds that arose prior to or contemporaneously with the alleged marriage, and therefore cannot logically be premised on grounds arising after marriage.  Hence, rather than assisting Petitioner, Garcia suggests that both the case at bar and the conservatorship case involve the same “primary rights” and, thus, the petition here is barred by the doctrine of res judicata, as discussed infra.

It is certainly true that the express terms of section 2251 require “predicate” findings by the trial court that (1.) the marriage is void or voidable, and (2.) at least one party maintained a good faith belief in the validity of the marriage.  (In re Marriage of Tejeda (2009) 179 Cal.App.4th 973, 980.)  However, codification of the common law doctrine was not intended to narrowly confine application only to parties to a void or voidable marriage; the Legislature instead contemplated the continued protection of “innocent” parties who mistakenly believed they were validly married.  (Id., citing In re Marriage of Vryonis (1988) 202 Cal.App.3d 712, 718; In re Marriage of Monti (1982) 135 Cal.App.3d 50, 56.) 

But therein lies Petitioner’s problem:  “Although the claimed belief need not pass a reasonable person test, the reasonableness or unreasonableness of one's belief in the face of objective circumstances pointing to a marriage's invalidity is a factor properly considered as part of the totality of the circumstances in determining whether the belief was genuinely and honestly held.”  (Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1116.)  Here, Petitioner tellingly omits facts judicially determined by the Court in the related conservatorship action, such as Petitioner’s admission of telling a “pack of lies” under oath at trial.  When Petitioner admitted she had previously lied, and that her claimed marriage did not occur in 1997, whereas the marriage certificate offered as proof of a solemnized wedding is dated May 24, 1997, Petitioner thereby conceded her actual knowledge that the marriage certificate was not authentic.  Hence, Petitioner cannot reasonably claim a subjective good faith belief in the validity of the marriage as a matter of law.  (Vryonis, supra at p. 721 [solemnization is a “major factor”; without it, belief in valid marriage lacks any reasonable basis]; Flanagan v. Capital Nat’l Bank (1931) 213 Ca. 664, 667 [prior marriage demonstrates actual knowledge of requirements].)  Not being “innocent,” Petitioner may not claim putative spouse status.  (In re Marriage of Guo & Sun (2010) 186 Cal.App.4th 1491, 1500-01.)  This conclusion is inescapable and no reasonable person—whether party or attorney—could claim otherwise, whereas Petitioner and Petitioner’s counsel have now tried, and failed, in no less than three separate actions to avoid this inevitable result.

In sum, the Court finds that the present petition has been filed for an “improper purpose,” to wit, to harass Respondent, to cause unnecessary delay—specifically, to permit the filing of a lis pendens so as to prevent the residence sale as ordered by the Court in the related conservatorship action despite having tried and failed to so there—and to needlessly increase the costs of litigation, despite Petitioner’s knowledge that funds of the estate are scarce.  (Code Civ. Proc. § 128.7(b)(1).)  Likewise, the Court finds that the current petition is clearly “not warranted by existing law” or by a “nonfrivolous argument” for its extension, modification, reversal or establishment of new law.  (Code Civ. Proc. § 128.7(b)(2).)  Respondent’s request for monetary sanctions against Petitioner’s counsel in the amount of $3,617.50 for needless attorney’s fees and costs is hereby GRANTED.  Petitioner’s counsel is ordered to pay Respondent, as conservator of the estate, said sum within ten (10) days of this Order.   

Regarding Respondent’s request for dismissal, the Court finds that the denial of Petitioner’s putative spouse petition in Stanislaus Superior Court Case No. 692837 (the conservatorship action) on February 9, 2018, involved the same parties, the same issue and was terminated on the merits adversely to Petitioner.  This prior adjudication is therefore a complete bar to the instant petition based on the doctrine of res judicata.  (Code Civ. Proc. § 1908; 9 Witkin Cal. Proc. Judgm. § 335.)  A judgment is binding and conclusive against collateral attack even though it is harsh or unjust, contrary to the evidence, or based on errors of law, all of which encapsulates the only arguments to the contrary offered by Petitioner. (Beverly Hills Nat. Bank v. Glynn (1971) 16 Cal.App.3d 274, 286; Smith v. Smith (1981) 127 Cal.App.3d 203, 209.)  The doctrine applies with equal force to probate court judgments and orders. (Kuchel v. Tolhurst (1952) 39 Cal.2d 224, 228; Lazzarone v. Bank of America (1986) 181 Cal.App.3d 581, 591.)  Pretending that the prior adjudication was somehow distinct will not save Petitioner: the doctrine applies not merely to issues actually determined, but also to issues “necessarily involved”— even if not raised— and “every matter which might have been urged to sustain or defeat its determination.” (Shore v. Shore (1954) 43 Cal. 2d 677, 681-82.) 

Consequently, Respondent’s request for dismissal based on the res judicata argument is hereby GRANTED.  Respondent’s shall prepare the judgment of dismissal and give notice of entry upon finality of this Order.  Respondent’s objections to the lis pendens and the motion to quash them are consequently moot since there is no longer a “pending” action on which they were based.  Petitioner and Petitioner’s counsel is ordered to immediately withdraw or cancel any lis pendens related to this action and to file, serve and record notice of such as per code, giving notice to all parties, counsel and the Court, within five (5) days of this Order.  Petitioner and Petitioner’s counsel are admonished that the failure to timely and fully comply with this Order, and any part of it, may result in further monetary sanctions and/or contempt proceedings.  (Code Civ. Proc. §§ 177.5, 128.7, 128.5; Cal. Rules of Court, rule 2.30.

8003749 - RODRIGUEZ VS RODRIGUEZ

Petitioner’s Request for Order re Elisor, etc.—DENIED, without prejudice.

Petitioner has not complied with the obligatory procedural requirements.  (See, Local Rules, rule 7.05.2 “Appointment of Elisors.”) 


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

THERE ARE NO TENTATIVES


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

689393- AVALOS V. AVALOS

Petitioner’s request for orders regarding appointment of an elisor—GRANTED

The court grants petitioner’s request for appointment of an elisor.  He has provided a copy of the document he needs signed in accordance with Local Rule 7.05.2, and he has also sufficiently demonstrated respondent’s unwillingness to sign without judicial assistance.  Whether petitioner has in the past decreased the amount in the retirement account in violation of the Automatic Restraining Orders is not relevant to the propriety of the proposed QDRO, which contains all information necessary for the plan to act, and which petitioner’s plan has approved.  The court therefore appoints an elisor to sign the QDRO petitioner’s counsel prepared and attached to the current RFO.  The court denies petitioner‘s request for attorney fees as they are unwarranted under on these facts and given respondent’s income.  (Fam. Code, § 271, subd. (a).)

Respondent raises issues that cannot be decided based on a responsive declaration.  (Cal. Rules of Court, rule 5.92(g)(2) [“The responding party may request relief related to the orders requested in the moving papers. However, unrelated relief must be sought by scheduling a separate hearing using Request for Order (form FL-300) and following the filing and service requirements for a Request for Order described in this rule.”].)  If respondent wishes to pursue the claims she makes in the responsive declarations he files, she must do so by some other means.

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 Kellee Westbrook in Department #25:

 THERE ARE NO TENTATIVES