GOMEZ VS MARQUEZ

THERE ARE NO TENTATIVES. The following are the tentative ruling cases calendared before Judge J. Richard Distaso in Department #13: THERE ARE NO TENTATIVES. The following are the tentative ruling cases calendared before Judge Sarah Birmingham in Department #14: THERE ARE NO TENTATIVES. The following are the tentative ruling cases calendared before Judge Maria Elena Ramos-Ratliff in Department #25:

FL-22-001258 - GOMEZ VS MARQUEZ Respondent's Request for Order re Set Aside, etc.-- DENIED, without prejudice. There is no proof of service on file, as required. As this matter is post-judgment, individual service of Petitioner is required. (Cal. Rules of Ct., rules 5.92, 5.94(b); Fam. Code, Sec. 215(a).)

But even assuming that Petitioner appears and waives any objection to service, the Court is without authority to grant Respondent's motion as a matter of law. Petitioner filed this dissolution action on May 19, 2022. Petitioner filed Proof of Service of Summons on July 5, 2022, which averred personal service of Respondent on May 24, 2022. While Respondent alleges that his mailing address was other than as stated, and denies that he was ever personally served, the Proof of Service of Summons establishes presumptively valid and proper service absent proof to the contrary. Respondent's declaration fails to offer any supporting evidence that specifically refutes the process server's declaration, signed under penalty of perjury.

However, assuming Respondent had done so--or does so at the hearing if Respondent appears--Respondent did not file this motion until July 23, 2026. While the Court may grant relief and set aside the entry of default, and the resulting default judgment, on grounds of mistake, surprise, inadvertence or excusable neglect, that motion must be both filed and served on the other party no later than six (6) months after the entry of default and/or the default judgment. (Code Civ. Proc., Sec. 473(b); Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 341-342 [section 473(b) motion untimely where, although filed within 6-month deadline, it was not served during 6-month period].)

The 6-month time limit on section 473(b) relief motions is jurisdictional, meaning that the Court has no authority to grant an untimely 473(b) motion no matter what grounds are asserted. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980 [no authority to grant untimely section 473(b) motion regardless of the underlying merits and whether or not there is a reasonable excuse offered for the delay in filing and serving the motion]; Hogoboom & King, Cal. Prac. Guide Family L. (TRG 2026) Ch. 16-A, Sec. 16:47.)

Likewise, a motion to set aside may based--as Respondent claims here--on the lack of actual notice, but the outside time limit on this motion is 180 days after service of notice of entry of judgment, which in the case at bar occurred on August 18, 2022. (Code Civ. Proc., Sec. 473.5(a); Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180, disapproved unrelatedly by California Capital Ins. Co. v. Hoehn (2024) 17 Cal.4th 207, 212.)

While service of summons served by substitute service at an address where the opposing party knows the moving party does not reside may trigger an alternative outer time limit of two years, Respondent's request does not satisfy the other procedural prerequisites for a motion under this statute. (Id.; Olvera v. Olvera (1991) 232 Cal.App.3d 32, 39; Hogoboom & King, supra, Sec. 16:192 [affidavit supported by admissible evidence that lack of notice not due to moving party's avoidance of service or inexcusable neglect, plus attachment of proposed responsive pleading].)

The Court must remain neutral and it is not the Court's role to give legal advice or to consider legal authority not cited or relied upon by the parties. Accordingly, this Tentative Ruling is made without prejudice to any other grounds or statutes not expressly addressed. Respondent may wish to seek legal advice at his own expense, but is welcome to contact the Court's Self-Help Center for free assistance with forms and procedures not requiring legal advice.