Petitioner's Request for Order re Set Aside Parentage
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 or declaration under penalty of perjury that there are new or different facts, circumstances or changes of law that justify revisiting and overturning final rulings, orders or judgments and must further demonstrate that Petitioner could not have discovered or offered these new or different matters had he exercised reasonable diligence to obtain them in time to be presented at the original hearing or trial in the first place. (Code Civ. Proc., Sec. 1008(a), (b).) Petitioner failed to do so here.
Petitioner's remaining asserted reasons for this request are unpersuasive: first, any relationship, whether approved of by Petitioner or not, between the subject child and Petitioner's parents would seem to be their concern, and none of Petitioner's or this Court's; second, the same is true for Petitioner's new wife and any adult children, who are not parties to this case and over whom the Court has no jurisdiction; lastly, whether the subject child is or is not entitled to be a beneficiary of Petitioner's estate is a question for a Probate attorney and not this Court, which may not provide legal advice as a neutral, or else for another Division of this Court in the event of Petitioner's unfortunate demise.
The following are the tentative ruling cases calendared before Judge Sarah Birmingham in Department #14:
FL-23-003132 - ALESNA VS ALESNA Petitioner's Request for Order re "Clarify," etc.-- HEARING REQUIRED. Proof of mail service on Respondent is on file, but this matter is now post-judgment as of November 4, 2025, and all post-judgment order requests must be individually served on the opposing party. In the case of service by mail, the means that the opposing party's mailing address must be confirmed as current. (Fam. Code, Sec. 215(a); Cal. Rules of Ct., rule 5.92(f)(2)(B) [Address verification by form FL-334 or equivalent required by section 215].)
Petitioner did not file a form FL-334 and Petitioner's declaration does not otherwise verify the continuing validity of Respondent's mailing address. Respondent did not file a Responsive Declaration or other opposition and before the Court considers the merits of Petitioner's order request, the Court must find that compliance with section 215 has occurred, as that statute is "jurisdictional."
Aside from this, there is no such thing as a "motion to clarify" a final judgment. Once the time for appeal and challenge has expired, the Court's only role with respect to a final judgment relating to property or support is to enforce the judgment "as-is." The Court may not amend, modify, or rewrite the terms of a final judgment based on subsequent developments or the parties' course of conduct or representations to each other about the terms and consequences of the final judgment. (Marriage of Thorne & Raccina (2012) 203 Cal.App.4th 492, 499 [once judgment becomes final, court generally loses jurisdiction to modify or alter it]; Marriage of Farrell (1985) 171 CA3d 695, 702 ["Any other rule of law would reduce finality of decision in dissolution cases to an illusion"]; Hogoboom & King, Cal. Prac. Guide Family L. (TRG 2026) Ch. 17-E, Sec. 17:340.)
The provision for an equalization payment by Respondent is already an "order" that Respondent is obligated to follow and any further order would be redundant and is unnecessary. The Court must remain neutral and may not give either party legal advice, but it is a matter of law that orders regarding money or property in a final judgment are tantamount to "money judgments" for purposes of the Enforcement of Judgments Act and may be enforced or collected using any of the means provided by that Act. Petitioner may wish to seek legal advice at her own expense but is also welcome to contact the Court's Self-Help Center for free assistance with legal forms and procedures that do not require providing legal advice.
The following are the tentative ruling cases calendared before Judge Maria Elena Ramos-Ratliff in Department #25:
FL-26-000859 - GONZALEZ VS MONTIEL Respondent's Request for Order re Set Aside, etc.-- HEARING REQUIRED. Proof of mail service on Petitioner's counsel of record at the time is on file and presumptively valid. However, Petitioner filed a Substitution of Attorney on July 22, 2026, and is now self-represented. No Responsive Declaration or other opposition has been filed and the Court wishes to inquire as to whether Petitioner has received actual notice and whether Petitioner opposes Respondent's order request before ruling on the merits.
Turning to said merits, Respondent seeks to set aside the Court's Findings and Order After Hearing (FOAH) of April 28, 2026, which resulted from Petitioner's Request for Order re Child Custody and Visitation. The Court granted Petitioner's request for an Order Shortening Time (OST) and, based on Petitioner's moving papers,