Respondent's Request for Order re Set Aside
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.)
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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, granted temporary emergency orders pending hearing. The matter was originally set for mediation on April 21, 2026, but was continued by the Court to April 28, 2026, due to the mediator's lack of sufficient time to hear it as set. (FOAH, 4/21/26, p. 2 of 3.) Respondent made no appearance at either the hearing as originally set, nor the continued hearing.
The subject FOAH expressly states: The following custody and visitation orders are imposed by the Court based upon the combined agreement of the party and recommendation of the child custody counselor in the absence of the Mother and without prejudice. This order shall supersede all prior orders. (FOAH, 4/28/26, p. 2 of 3, emphasis added.)
Respondent's order request attaches a Points and Authorities, but there is no declaration signed by Respondent herself. Counsel's representations as to the alleged facts serving as the basis for relief are merely "argument," not "evidence" upon which the Court may rely. (See, Cal. Rules of Ct., rule 5.111(b)(2) [" A declaration must be based on personal knowledge and explain how the person has acquired that knowledge "], emphasis added.) Factual declarations are compulsory per the Rules of Court and per the "mandatory" nature of the Judicial Council FL-300 form required for all order requests. (Cal.
Rules of Ct., rule 5.92(b)(1); Marriage of Bardzik (2008) 165 Cal.App.4th 1291, 1297, n. 3 [declarations are supposed to reflect statements of the declarant under oath, not legal argument by counsel]; Hogoboom & King, Cal. Prac. Guide Family L. (TRG 2026) Ch. 5-D, Sec. 5:325-327 ["Evidentiary facts in support of each requested order must be included...The supporting declarations are for factual allegations "].) Absent such evidence, the Court is inclined to deny the request.
In any event, the authority cited by Respondent's counsel is inapposite: First, Family Code section 3690 et seq. only governs set aside of support orders, none of which are at issue here. Second, Family Code section 2100 et seq. applies only to judgments adjudicating support or division of property, and only after the expiration of the time for relief under Code of Civil Procedure section 473. (See, Fam. Code, Sec. 2121(a) ["In proceedings for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run ..."], emphasis added.)
Moreover, this is an action to establish parental relations, and therefore not a proceeding within the express scope of section 2100 et seq.
Third, and last, Respondent's counsel cites section 473(b) as authority but counsel did not submit an "affidavit of fault" that the subject FOAH resulted from counsel's neglect or mistake such that the so-called "mandatory" relief provisions of section 473(b) apply, nor did Respondent herself submit any affidavit attesting to facts that would establish "mistake, surprise, inadvertence or excusable neglect" sufficient to warrant relief. Even if Respondent had, the subject FOAH concerns neither a "default" nor a "dismissal," and because Petitioner's original RFO sought pendente lite relief, there is no "judgment" or even permanent custody order at issue, and any analogy to default is misplaced since that would assume the subject FOAH was not founded on the minor child's best interests, but was instead based solely on Respondent's absence.
No authority is offered that 473(b) relief obtains for temporary and pendente lite orders, and the prevailing view is to the contrary. (See, e.g., In re Marriage of Capos (2026) 120 Cal.App.5th 997, 1007 [distinguishing cases granting relief under Code Civ. Proc., Sec.Sec. 473(b),(d), 580, where default or default judgments were at issue because the appellant's default had not been taken]; Hogoboom & King, supra, at Sec. 5:300.8 ["[M]ore recent cases hold that the provision for mandatory relief does not apply absent an actual default, default judgment or dismissal.
This is probably the better view..."].)
Indeed, all child custody matters are inherently modifiable until the age of majority and because the Court expressly noted in the subject FOAH that it was "without prejudice" due to Respondent's non-appearance, set aside is arguably unnecessary for Respondent to seek modification. In terms of section 473(b) procedure, Respondent's order request did not include a copy of the "answer or other pleading proposed to be filed" (in this case a Responsive Declaration or FL-320), absent which "the application shall not be granted." (Code Civ. Proc., Sec. 473(b), emphasis added.) Based on the preceding, the Court is inclined to deny Respondent's order request, but as with the subject FOAH, will do so without prejudice to future modification proceedings.