Sherri Holmes v. Frank Forcier

LAW & MOTION TENTATIVE RULINGS DEPARTMENT 5 September 3, 2026 8:30 a.m./1:30 p.m.

16. SHERRI HOLMES V. FRANK FORCIER 25FL1138

Respondent filed a Request for Order (RFO) on June 12, 2026, seeking set aside of the default entered on January 12, 2026. He concurrently filed a Memorandum of Points and Authorities. Petitioner was electronically served on June 12th. Respondent asserts the default should be set aside pursuant to Code of Civil Procedure section 473(b) as a result of mistake and surprise. Respondent asserts that he was not properly served with the notice of default and that Petitioner did not inform him that she was seeking a default. Respondent also asserts that he was working with counsel to prepare his disclosures.

Petitioner filed a Responsive Declaration on August 17, 2026. It was mail served the same day. Petitioner objects to the request to set aside, as she asserts Respondent was properly served at his last known address as required. Petitioner asserts that Code of Civil Procedure section 587 applies as Respondent was served at his last known address and the nonreceipt of the notice shall not invalidate or constitute ground for setting aside any judgement. Petitioner also asserts there was no surprise, as Respondent was properly served with the Petition and Summons and had ample opportunity to respondent, and failed to do so.

“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.” Cal. Civ. Pro. § 473(b). To obtain relief under Section 473(b), the moving party must do so within a reasonable time and must provide a copy of the pleading proposed to be filed. Id. Section 473(b) allows for a set aside in instances of the attorney’s fault, which gives rise to mandatory relief from a default judgment, in all other cases, relief is discretionary. See Garciae v. Hejmadi, 58 Cal. App. 4th 674 (1997).

Here, Respondent is pro per, therefore the mandatory provisions of Section 473(b) do not apply. Instead, the court must determine whether or not Respondent has met his burden under Section 473(b). In making such a determination, a pro per is held to the same standard as a practicing attorney. Goodson v. Bogerts, Inc., 252 Cal. App. 2d 32, 40 (1967) (“One who voluntarily represents himself is not, for that reason, entitled to anymore (or less) consideration than a lawyer. Thus, any alleged ignorance of legal matters or failure to properly represent himself can hardly constitute ‘mistake, inadvertence, surprise, or excusable neglect’ as those terms are used in section 473”). While the court is not to give deference to a party simply because that party was acting in pro per, the court is to resolve any doubts as to a showing of mistake, inadvertence, surprise, or excusable neglect in favor

LAW & MOTION TENTATIVE RULINGS DEPARTMENT 5 September 3, 2026 8:30 a.m./1:30 p.m.

of the moving party. Elston v. City of Turlock, 38 Cal. 3d 227, 233 (1985) (overruled on other grounds). This is especially so when there has been no showing of substantial prejudice to the opposing party should the motion be granted. Id. at 235.

Respondent makes two main arguments in support of his request to set aside the default. First, he states the parties were actively engaged in settlement negotiations so he was of the belief that he did not need to file a Response to the Petition. Second, he argues that he did not receive the default paperwork because it was not sent to his then-current address. The court concurs with Petitioner’s argument that failure to receive the paperwork when it was properly served to Respondent’s last known address is not grounds to set aside the default. See Cal. Civ. Pro. § 587. Thus, the court is left only to address Respondent’s first argument.

Where a default is taken while settlement negotiations are ongoing, the defaulting party's failure to respond is most persuasively characterized as the product of surprise or excusable neglect — having reasonably believed that no formal action would be taken while the parties were working toward resolution. In such instances, the court is to determine whether a “reasonably prudent person under the same or similar circumstances” might have made the same error. Minick v. City of Petaluma, 3 Cal. App. 5th 15, 26 (2016). The court does not find that to be the case in the matter at hand.

Respondent maintains that he did not file his Response because the parties were actively engaged in ongoing settlement negotiations. However, it is clear from Petitioner’s filings that she in fact had to request Respondent’s financial disclosures “for several months” during that time period. The court fails to see how the parties could have been conducting meaningful settlement discussions without Respondent so much as having provided his disclosures.

Furthermore, the sheer amount of time that passed from the date the Response was due until the date Respondent attempted to actually file, lends credence to the court’s belief that Respondent’s actions were not that of a reasonably prudent person. While his motion is not untimely under Section 473(b) per say, as it was filed within six months of the date of default, the court does not find that a reasonably prudent person would have allowed over seven months from the date of service of the Petition to lapse without so much as attempting to file a Response or receiving express assurances from the opposing party that a default would not be taken. Respondent did neither.

LAW & MOTION TENTATIVE RULINGS DEPARTMENT 5 September 3, 2026 8:30 a.m./1:30 p.m.

For the reasons set forth above, the court does not find grounds to set aside the default. Respondent’s request is therefore denied.

Respondent is directed to prepare the Findings and Orders After Hearing (FOAH); however, this order is effective immediately upon the court’s adoption of the tentative ruling and is not conditioned on the preparation of the FOAH.

TENTATIVE RULING #16: THE COURT DOES NOT FIND GROUNDS TO SET ASIDE THE DEFAULT. RESPONDENT’S REQUEST IS THEREFORE DENIED.

RESPONDENT IS DIRECTED TO PREPARE THE FINDINGS AND ORDERS AFTER HEARING (FOAH); HOWEVER, THIS ORDER IS EFFECTIVE IMMEDIATELY UPON THE COURT’S ADOPTION OF THE TENTATIVE RULING AND IS NOT CONDITIONED ON THE PREPARATION OF THE FOAH.

NO HEARING ON THIS MATTER WILL BE HELD UNLESS A REQUEST FOR ORAL ARGUMENT IS TRANSMITTED ELECTRONICALLY THROUGH THE COURT’S WEBSITE OR BY PHONE CALL TO THE COURT AT (530) 621-6725 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 PHONE CALL OR IN PERSON BY 4:00 P.M. ON THE DAY THE TENTATIVE RULING IS ISSUED. CAL. RULE CT. 3.1308; LOCAL RULE 8.05.07.