Motion for Sanctions; Motion to Set Aside Minute Order
March 20, 2026 Dept. 9 Tentative Rulings
7. 24CV0034 TAPIA vs. TAPIA et al Default Judgment
A hearing was scheduled on January 16, 2026, to consider Defendant’s request for award of attorneys’ fees in a partition action. Prior to the January 16, 2026, hearing, Plaintiff did not notify the Court of her intention to dispute the tentative ruling that had been posted the previous afternoon. At the hearing, for due process reasons, the Court had no authority to entertain Plaintiff’s oral argument without prior notice to Defendant, and accordingly, adopted the tentative ruling as required by El Dorado County Superior Court Local Rule 8.05.07(B)(1)(b) and California Rules of Court, Rule 3.1308(a)(1).
At the time, Plaintiff understood that she was representing herself in the matter. Plaintiff’s retainer agreement with her attorney provided for representation through the process of partitioning a real property. Declaration of Olivia Torrise, dated February 17, 2026 (“Torrise Declaration”), paragraph 4.
Instead of following the statutory procedures, the partition was accomplished by a series of Stipulations. In those Stipulations, the parties reserved the Court’s jurisdiction “to determine whether equitable distributions to the net proceeds to the parties are just and proper, including but not limited to, any and all claim(s) for reimbursement of . . . attorney’s fees/costs. . . or other compensatory adjustment among the parties relating to the Property.” February 28, 2025, Joint Stipulation to Interlocutory Judgment, paragraph 30.
The April 23, 2025, Joint Stipulation to Determine Fair Market Value and Cotenant Buyout provided that “[t]he Parties expressly reserve the issue of Apportionment of the costs of partition under CCP § 874.321.5 for later determination by the Court.” On July 25, 2025, the Court entered an Order for Disbursement of Funds, due to be paid to Plaintiff on August 1, 2025.
At this point, both Plaintiff and Plaintiff’s counsel considered the contingency retainer agreement for representation to be concluded. Torrise Declaration, para.
6.
Defendant filed a motion to recover attorneys’ fees on December 12, 2025, and served that motion on Plaintiff’s counsel on December 12, 2025. In response, on December 18, 2025, Plaintiff’s counsel filed a motion to be relieved as counsel, stating in part: “Counsel's representation was limited in scope pursuant to a contingency fee agreement that concluded upon entry of judgment regarding property division or sale, and that scope has been completed. Post-judgment matters, including attorney's fees, were not included, and Client has declined to execute a new retainer or remit payment despite notice.”
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The December 8, 2025, motion for award of attorney’s fees contained a statement of the Court’s tentative ruling system, which requires litigants to notify the Court whether they intend to appear for oral argument during a two-hour window following the time a tentative ruling is
March 20, 2026 Dept. 9 Tentative Rulings
published by the Court. The motion also included notice of the hearing date, scheduled for January 16, 2026. The Court has no record as to how Plaintiff herself, as opposed to her counsel, became aware of the hearing date or whether she ever received the notice of motion document that included the tentative ruling instructions.
The deadline to file an Opposition to the attorneys’ fee motion was January 5, 2026. At the time that the Opposition was due, Plaintiff understood that she was self-represented. Plaintiff served a substitution of attorney on Defendant as of January 7, 2026, to notify Defendant that she would be representing herself, and filed it with the Court on January 22, 2026. There is no evidence that Defendant re-served the attorneys’ fee motion documents on Plaintiff directly after receiving the substitution of attorney. There is also no evidence that the motion documents that were served on Plaintiff’s counsel were actually delivered to Plaintiff.
Plaintiff has filed this motion to be relieved of that January 16, 2026, Order pursuant to Code of Civil Procedure § 473(b) and 473(d). Section 473(b) provides:
The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.
Section 473(d) further states: “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”
As there was no mistake invalidating the Order the remaining authority for potential relief is Section 473(b) on the grounds of mistake, inadvertence, surprise, or excusable neglect. Under the circumstances, with no evidence that Plaintiff herself ever received notice of the tentative ruling system from Defendant when he became aware that she would be representing herself, or from her then-former counsel, the Court finds that it is in the interests of justice and due process to set aside the January 16, 2026, Minute Order and hear the motion on the merits.
While the statute requires that the motion “be accompanied by a copy of the answer or other pleading proposed to be filed therein”, the Local Rules do not require written Opposition to a motion. Instead, [f]ailure to timely serve and file opposition papers may be deemed, in the Court’s discretion, as a waiver of any objections and may be treated as an admission that the motion or other application is meritorious.” Local Rule 7.10.02(B). Accordingly, the failure to include a proposed written Opposition to the attorneys’ fee motion does not require the Court
March 20, 2026 Dept. 9 Tentative Rulings
to reject the Section 473(b) motion. Plaintiff has included with the Section 473(b) motion the following declarations of intention to oppose an attorneys’ fee award to Defendant:
“I fully intended to oppose the motion and to present my position to the Court that I am entitled to recover attorney’s fees incurred in connection with the partition action.”
“I believe I have valid defenses and affirmative claims regarding attorney’s fees, which were expressly reserved by the parties’ stipulation and were never adjudicated by the Court prior to entry of judgment.”
Declaration of Sonia Tapia, dated February 4, 2026, page 2.
Sanctions
Defendant suggests that Plaintiff should be found in contempt of Court for filing the motion for relief from the Minute Order awarding attorneys’ fees in violation of Code of Civil Procedure §§ 1008 and 128.7. Because the motion was not brought under Section 1008, and because the Court has granted the Section 473(b) motion, the Court will not find Plaintiff in contempt of Court or issue sanctions. TENTATIVE RULING #7: 1. THE MOTION FOR SANCTIONS IS DENIED.
2. THE MOTION TO SET ASIDE THE JANUARY 16, 2026, MINUTE ORDER IS GRANTED.
3. THE MATTER IS CONTINUED TO MAY 8, 2026; THE PARTES MAY FILE ADDITIONAL BRIEFINGS IN ACCORDANCE WITH CODE OF CIVIL PROCEDURE § 1005. NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY TELEPHONE TO THE COURT AT (530) 621-6551 BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07; SEE ALSO LEWIS V. SUPERIOR COURT, 19 CAL.4TH 1232, 1247 (1999). NOTICE TO ALL PARTIES OF A REQUEST FOR ORAL ARGUMENT AND THE GROUNDS UPON WHICH ARGUMENT IS BEING REQUESTED MUST BE MADE BY TELEPHONE OR IN PERSON BY 4:00 P.M.
ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; EL DORADO COUNTY LOCAL RULE 8.05.07. PROOF OF SERVICE OF SAID NOTICE MUST BE FILED PRIOR TO OR AT THE HEARING. LONG CAUSE HEARINGS MUST BE REQUESTED BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED AND THE PARTIES ARE TO PROVIDE THE COURT WITH THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M. LONG CAUSE ORAL ARGUMENT REQUESTS WILL BE SET FOR HEARING ON ONE OF THE THREE MUTUALLY AGREEABLE DATES ON FRIDAY AFTERNOONS AT 2:30 P.M.
THE COURT WILL ADVISE THE PARTIES OF THE LONG CAUSE HEARING DATE AND TIME BY 5:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. PARTIES MAY PERSONALLY APPEAR AT THE HEARING.
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