Where & When Will Your Motion Be Heard?
The law and motion section of the DCSS Legal Team is staffed by one Deputy Department Counsel (attorney) and two law clerks. It is the attorney’s responsibility to respond to motions served on DCSS. Court appearances on the law and motion calendar are made on the general calendar schedule (Monday through Thursday at approximately 8:30 a.m. in Departments L51, L52, and L54 at the Lamoreaux Justice Center). The terminal digits of the Orange County Superior Court case number dictate which department will hear your motion. Superior Court case numbers ending in 00-33 are heard in Department L51, those ending in 34-66 are heard in Department L52, and those ending in 67-99 are heard in Department L54.
Service Of Your Motion
Within five days of receipt of the noticed motion, DCSS will mail a copy of the motion/pleadings to the non-moving party in compliance with Family Code Section 17404(e)(3). There is a rebuttable presumption that service on DCSS constitutes valid service on the non-moving party provided that both parents are parties to the action and provided that the motions was served upon DCSS at least 30 days prior to the court hearing date. DCSS is required to serve on a parent all pleadings related to paternity or support as provided in Family Code Section 17404(f)(1)(B), but the rebuttable presumption applies only to pleadings related solely to support issues. Pursuant to Family Code Section 17404(e)(4), DCSS is not required to serve or receive service of pleadings, papers, or documents relating to the issues of custody or visitation.
Most Frequently Filed Motions
The most commonly filed motions are Motions to Set Aside a Judgment or Order, Motions to Dismiss, and Motions to Set Aside a Support Order.
Code of Civil Procedure Sections 473 Motions
The majority of the Motions to Set Aside Judgments are filed by Non-Custodial Parents under Code of Civil Procedure Section 473. This statute allows a judgment or order to be set aside if the judgment was taken against the parent by mistake, inadvertence, surprise, or excusable neglect. The motion must be accompanied by a responsive pleading or answer and must be filed within six months after the judgment or order was taken.
When DCSS receives a CCP 473 motion within six months of the judgment or order and the moving party makes a good faith showing that the judgment or order was taken against him or her through mistake, inadvertence, or excusable neglect, DCSS will usually not oppose the motion. If DCSS is not opposing the motion, and if paternity is admitted in the answer, then DCSS will normally agree to set aside the financial portion of the orders, thereby allowing the judgment of parentage to remain intact. A subsequent court date will be set to re-determine the financial orders. DCSS will request that retroactivity be reserved to the dates in the original order or judgment. DCSS will also request that both parties be ordered to comply with a standard discovery order for financial information. This requires that pertinent financial documents be sent to DCSS at least 21 days prior to the re-determination hearing’s court date. If genetic testing is not ordered, the court will normally enter a temporary order of child support pending the re-determination hearing.
Code of Civil Procedure Section 473.5 Motions
A Motion to Set Aside a Judgment under Code of Civil Procedure Section 473.5 must be served and filed within the earlier of:
- Two years after the entry of a default judgment, or
- 180 days after service on the moving party of written notice of entry of judgment. When DCSS receives a Motion to Set Aside a Judgment under CCP 473.5, it will review the file and case notes to verify if the moving party, after service of the Summons and Complaint, had actual notice of the action in time to defend the action.
If DCSS has information that the moving party had actual notice of the actions in time to defend the action (e.g., the moving party had some type of contact with DCSS within the time to answer and admitted knowledge of the action in time to defend it), DCSS will typically oppose the motion. However, if DCSS determines that the moving party lacked actual notice in time to defend the action, if his or her lack of actual notice was not caused by his or her avoidance of service or inexcusable neglect, DCSS will usually not oppose the motion.
If paternity is admitted within an Answer, DCSS will normally agree to set aside the financial orders only, thereby allowing the paternity judgment to remain intact. A typical order resulting from the hearing will usually allow the financial orders to be re-determined and a subsequent hearing date will be set. DCSS will request that retroactivity be reserved to the dates in the original judgment or order and will request that both parties be ordered to comply with a standard discovery order for financial information. This order requires that both parties submit pertinent financial documentation to DCSS at least 21 days prior to the re-determination hearing. If genetic testing is not ordered, the court will enter a temporary child support order pending the hearing at which financial orders will be re-determined.
If DCSS is not opposing the motion and if paternity is denied in the Answer, DCSS will usually agree to set aside the judgment and have genetic testing ordered by the court provided that:
- no paternity presumptions apply;
- there is no Voluntary Declaration of Paternity ("POP Declaration") filed with DCSS; and
- there exists no prior judgment of paternity.
Family Code Section 7646 Motions
DCSS receives a steady volume of Motions to Set Aside Judgments under Family Code Section 7646, a law which went into effect on January 1, 2005. In addition, DCSS may initiate the filing of these motions in limited circumstances. Upon receipt of a motion, DCSS will verify the following: 1) whether the conclusive martial presumption (Family Code Section 7540) applies; 2) whether or not a Voluntary Declaration of Paternity has been filed with the California Department of Child Support Services; and 3) whether or not a prior judgment of paternity is in existence. Further, DCSS verifies that the motion complies with all of the strict procedural requirements found in Family Code Section 7647.
If the motion is proper, DCSS will send out administrative genetic testing orders and genetic testing appointment letters to all parties. In most cases, provided that the parties cooperate and attend the first genetic testing appointment, the test results will be available in time for the first hearing on the motion. At the hearing on the motion, if the genetic testing results do not exclude the "previously established father" as the biological father of the child or children, DCSS will request that the Motion to Set Aside be denied. If the genetic testing results exclude the "previously established father", as the biological father, DCSS will request the court set the matter for a hearing on the "best interests of the child" determination. At this hearing, the court and DCSS will elicit testimony, if necessary, from the parties relevant to the Family Code Section 7648 "best interests of the child" factors. If the court concludes that it is not in the child’s best interests that the previously established father remain as the legal father, the court will set aside the judgment of paternity and all child support orders based on that judgment.
For a synopsis of the Family Code Section 7648 (Motion to Set Aside), see the "Paternity Disestablishment" Section
Motion to Dismiss
The Code of Civil Procedure §583.250 provides that when service is not made within the time period set forth in Code of Civil Procedure §583.210, the action must be dismissed. After a complaint is filed with the court, the following must occur:
- The Summons and Complaint must be served on the individual within three years, and
- The Proof of Service of the Summons and Complaint must be filed with the court within three years and sixty days. If either of these conditions is not met, then the corresponding complaint and/or judgment must be dismissed.
Motion to Set Aside the Support Order (Family Code Section 3690 & 3691)
When the six month time limit of Code of Civil Procedure §473 has expired, a support order may be set aside under Family Code Sections 3690 and 3691. The three grounds on which to set aside a support order are provided by statute. They are:
- actual fraud;
- lack of notice.
When a party has been fraudulently prevented from fully participating in the proceedings, actual fraud has been committed. An action may be brought within six months after the defrauded party discovered or reasonably should have discovered the fraud. If a party believes that an order was obtained via perjury, the party must bring an action referencing this perjury within six months after they discovered the perjury. If service has not resulted in actual notice to a party, a motion to set aside a support order must be filed within six months after the party obtains or reasonably should have obtained notice that:
- There is a support order; or
- The party has expended money, even if involuntarily, toward the current child support order. However, a party will not be entitled to relief under this section if service was made within the existing requirements of the law.