ONCALL
...Family Law
......Procedure After Trial/Hearing
 36 Cards On This Topic:
  • Even if the dismissal could be deemed void rather than voidable for purposes of CCP §473(d), substantial evidence supported conclusion that D ratified his atty's unauthorized settlement agrmt. by failing to object and take steps to rectify the matter.
  • Appeal in grandparent visitation case dismissed for lack of appellate jurisdiction where mother filed notice of appeal beyond the 60-day deadline.
  • Timely filed motion to set aside default properly denied as it was not accompanied by a proposed responsive pleading.
  • May not use sanctions order to challenge a nonappealable order quashing an SDT, and then use trial court's analysis to review a separate order Court of Appeal ruled could not be appealed.
  • Entry of default against D vacated where application was "in proper form" despite no responsive pleading and "was not in fact caused by" the attorney's neglect. (CCP §473(b).)
  • To avoid implied findings supporting order, party must bring ambiguities and omissions in the factual findings of the statement of decision to the trial court's attention.
  • Clerk's renewal of 2008 judgment, where renewal request didn't specify judgment debtor’s capacity, was a clerical error, and court properly corrected it.
  • When electronic filing problems delay notice of appeal.
  • Stipulated judgment, which D lessee agreed to accept in breach of lease K, was the exact amount of damages P suffered, not a penalty or liquidated damage provision.
  • Court of Appeal has inherent authority to dismiss frivolous appeals.
  • Issue preclusion does not prevent a second judge from finding a marriage to be void in CA despite another judge’s having found it valid where contracted.
  • Duress by a third person cannot void a contract when the other contracting party did not know about the duress and relied in good faith.
  • Failure to make reasonable inquiry to ascertain or effort to understand the meaning and content of the contract precludes rescission for unilateral mistake of fact.
  • Statement of decision is required in custody cases involving Fam. Code §3044.
  • Appellate court cannot become appellant's lawyer; failure to show legal error compels affirmance of judgment.
  • Issue preclusion discussed.
  • Family law courts are courts of equity and may amend final adoption contracts where equity demands it.
  • Neither evidence of intentional or deliberate misrepresentation is required for the doctrine of equitable estoppel to apply.
  • Fam. Code §4320 does not require express findings, only that the court “consider all of the following circumstances"; the weight to give each factor is up to the court.
  • It is better practice to make express findings on all relevant 4320 factors when ruling on a modification motion, not just ones which have changed.
  • Default judgment set aside where based on invalid substituted service.
  • Void judgment may be set aside at any time without regard to six-month limit in CCP §473.
  • Acts in excess of jurisdiction usually valid until set aside.
  • An attorney may not settle a client’s case over the client’s objection and any provision of a retainer agreement purporting to give an attorney such authority violates the RPC and is void.
  • No mandatory §473 relief where attorney not representing defendants at time default was entered.
  • A judgment which awards relief not available under the law is voidable.
  • Conflicts between the written order and reporter's transcript are usually resolved in favor of the latter with the discrepancies presumed to be clerical in nature.
  • Equitable relief from a default judgment is reserved for exceptional circumstances and Ds' failure to inform of their current address did not qualify.
  • Extrinsic fraud and extrinsic mistake are unavailable when a party’s own negligence allows the fraud or mistake to occur.
  • Extrinsic mistake distinguished from extrinsic fraud.
  • P#2’s last day to file her notice of appeal was the day the court reopened after the emergency Covid-19 orders expired.
  • A defective motion for reconsideration is not “valid” and does not extend the time to appeal.
  • A Ruling which disposes of all of the issues in the case is the appealable order even if followed by a written order.
  • A Motion for Reconsideration may not be entertained after the entry of a final appealable judgment.
  • Trial court has no power to sua sponte reconsider a previous order based on new evidence-doing so amounts to an improper granting of a new trial.


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