Petitioner's Request for Order re Genetic Testing
THERE ARE NO TENTATIVES. The following are the tentative ruling cases calendared before Judge J. Richard Distaso in Department #13:
FL-25-001790 - RODRIQUEZ VS RODRIQUEZ Petitioner's Request for Order re "Genetic Testing," etc.-- DENIED. There is no proof of service on file as required. (Cal. Rules of Ct., rule 5.94(b).)
Although Respondent is in default, the paternity of the minor children of the marriage is a question that involves due process rights and both adequate notice and service are required in the Court's view. But even if Respondent were to appear and waive service, Petitioner's request is untimely and fails to allege, let alone prove, sufficient facts to entitle Petitioner to court-ordered genetic tests.
Petitioner filed the Petition for Dissolution on July 7, 2025, and listed four minors as children of the parties' marriage. The subject minor's date of birth was alleged to be October 12, 2023, which is after the date of marriage and less than seven (7) months after the date of separation. As noted, Respondent's default was entered on June 4, 2026, at Petitioner's request. Those allegations, now that Respondent's default has been entered, are deemed admitted and constitute judicial admissions.
As a matter of law, the child of spouses who cohabitated at the time of conception is conclusively presumed to be a child of the marriage. (Fam. Code, Sec. 7540(a); County of Los Angeles v. Christopher W. (2019) 41 Cal.App.5th 827, 837.) Petitioner's only allegation to rebut this "conclusive" presumption is that Respondent has refused to provide a birth certificate for the subject minor and that Petitioner suspects the minor child was "conceived around the time of infidelity." Neither allegation, even if found true by the Court, precludes the existence of the predicate foundational facts for application of the so-called conclusive marital presumption. (In re Elijah V. (2005) 127 Cal.App.4th 576, 587 [7540 presumption applied even though H's military service entailed deployment out of state where evidence demonstrated that H and W lived together in military housing when child was conceived].)
In addition, genetic tests have no legal significance and are inadmissible to rebut the 7540 presumption unless those tests are ordered by the Court and performed by court-appointed experts pursuant to law. (Fam. Code, Sec.Sec. 7541(a), 7551(a),(b)(2), 7552;
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Lastly, an action or proceeding to rebut parentage established by the 7540 presumption must be commenced within two (2) years of the minor child's date of birth, which means that the pleading must be both filed and served within that time. (Fam. Code, Sec. 7541(b); Marriage of Freeman (1996) 45 Cal.App.4th 1437, 1444; Miller, supra, 64 Cal.App.4th at 119.) As of this date, Petitioner has not served his paternity challenge and request for genetic testing and the last day to do so expired on October 13, 2025. Petitioner's request is denied.
88382 - QUIROZ VS LANDEROS Petitioner's Request for Order re "Set Aside Parentage," etc.-- DENIED. There is no proof of service on file and the matter is post-judgment, so proper and timely individual party service is jurisdictional. (Fam. Code, Sec. 215(a); Cal. Rules of Ct., rule 5.94(b).)
However, even if Respondent were to appear and waive this defect, this action has been terminated and the matter finally adjudicated since at least 2002, over twenty years before Petitioner's current order request. No authority exists that would authorize the Court to grant Petitioner's request at this late date aside from proof of extrinsic fraud and the Court's authority to set aside orders and judgments that are void. (Code Civ. Proc., Sec. 473(d).)
Petitioner's allegation that Respondent's former counsel of record made assertions inconsistent with Petitioner's paternity in a brief filed before a long-cause hearing or trial in 1997 is not evidence of anything, since the argument of counsel is by definition not "evidence," and the Court's predecessors' decisions, findings, or other rulings speak for themselves. Moreover, at best, this would constitute "intrinsic," rather than extrinsic, fraud and would fail to provide legal grounds to set aside a final judgment as void under section 473(d).
More importantly, Petitioner filed a motion to vacate the judgment for the same grounds re-asserted here that was heard and denied by Judge Silveira, retired, on November 26, 2002, who ruled as follows: "Pet. notice of motion to vacate judgment is DENIED. Paternity has been legally determined by judgment filed 4-30-97." (Minute Order, 11/26/2002, p. 1 - Index No. 36 from physical case file, emphasis added, all-caps original.) Petitioner may not seek renewal or reconsideration of previously made requests without establishing by affidavit