Filed 10/21/21 Marriage of Martinez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of DARLENE C. 

MARTINEZ and JOSE L. 

MARTINEZ.

DARLENE C. MARTINEZ,

Appellant,

v.

JOSE L. MARTINEZ,

Appellant.

 D078063

 (Super. Ct. No. FAMSS1603672)

APPEALS from an order of the Superior Court of San Bernardino

County, Shannon Suber, Commissioner. Affirmed.

Law Offices of Soheila Azizi, Soheila Azizi and Joshua Edmondson for 

Appellant Darlene C. Martinez.

Howington & Associates and Joseph W. Howington; Holstein, Taylor 

and Unitt and Brian C. Unitt; Law Office of Brian C. Unitt and Brian C. 

Unitt for Appellant Jose L. Martinez.
2

After a lengthy marriage, Jose L. Martinez filed a petition for 

dissolution of marriage. Darlene C. Martinez did not respond to that 

petition, and, eventually, a default was entered. The superior court 

subsequently entered judgment, dividing the marital property, terminating 

spousal support, and addressing child custody and support. Darlene moved 

to set aside the judgment as well as the entry of default. The court vacated 

the portions of the judgment concerning the division of marital property and 

termination of spousal support. However, the court denied the motion to the 

extent it sought to set aside the default.

Darlene appeals, claiming the judgment was void because of fraud and 

should be vacated. She also argues this court should order the superior court 

to require Jose to amend his petition to include additional marital property to 

be divided and allow Darlene to respond to the amended petition. 

Jose has filed a cross-appeal, contending the superior court abused its 

discretion in partially vacating the judgment.

We reject the contentions in both the appeal and cross-appeal; thus, we 

affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Darlene and Jose were married on February 12, 1994. Jose filed a 

petition for dissolution of marriage on April 29, 2016, wherein he used a 

judicial council form and marked the boxes requesting termination of spousal 

support and division of marital property. Darlene was personally served with 

that petition on May 25, 2016. Jose also filed and served income and expense 

and community and quasi-community property declarations in January and 

February 2017.

Darlene did not respond to the dissolution petition. In a letter dated 

November 21, 2016, Jose’s counsel reminded Darlene that she had not filed 
3

any response (which was due on June 25, 2016) and told her that he would 

give her until Wednesday, November 23, 2016, to do so. Counsel also 

cautioned Darlene that he would “proceed with taking [her] default” if she did 

not respond by then.1

Darlene did not file a response to the dissolution petition by 

November 23. However, Jose did not file a request for default until 

February 14, 2017. The court clerk entered default that same day. Almost 

four months later, Darlene sent Jose’s counsel an e-mail asking him to set 

aside the default. Jose’s counsel declined to do so, and, on July 27, 2017, now 

represented by counsel, Darlene filed a request to set aside default under 

Code of Civil Procedure section 473, subdivision (b).2 In her declaration in 

support of her request, Darlene asked the court to find that her failure to 

respond was “excusable neglect due to severe emotional distress [she] 

suffered throughout the marriage including [Jose] trying to kill [her].” 

The court held a hearing on the request to set aside default on 

September 7, 2017. The transcript of this hearing is not in the record, but 

the minute order indicates that Darlene was sworn in as a witness and 

testified. The court denied the request.3

1 There is some indication in the record that Darlene had been providing 

documents to Jose’s counsel after service of the summons. In addition, Jose’s 

counsel provided Darlene with a settlement demand, proposing a specific 

division of the marital property. Darlene did not accept the demand.

2 Statutory references are to the Code of Civil Procedure unless 

otherwise specified.

3 The notice of ruling states that the hearing on the request to set aside 

the default occurred on September 18, 2017. The minute order of that 

hearing provides that it took place on September 7, 2017.
4

Over a year later, on September 20, 2018, Jose filed a declaration for 

default or uncontested dissolution of marriage. Along with his declaration, 

Jose filed a community and quasi-community property declaration. The court 

entered judgment on October 12, 2018. Notice of entry of judgment was filed 

and served on October 24, 2018.

Almost two months later, on December 14, 2018, Darlene filed a 

request to set aside the default judgment as well as the entry of default. The 

court heard oral arguments on Darlene’s request on October 2, 2019, but the 

court continued the matter to allow further briefing. The court was 

concerned that there was “insufficient evidence at [that] time to determine if 

the court [could] set aside a portion or portions of the default judgment 

without disturbing the entry of default.” Thus, the court asked for 

supplemental briefing to address that issue. That said, the court stated that 

it did not see any justification for setting aside the entry of default.4 

Upon resuming the hearing on October 17, the court, before allowing 

the parties to argue, issued an oral tentative ruling, wherein it explained:

“So my tentative would be the following: To leave the 

default intact but set aside the judgment itself because the 

judgment itself is both violative of Family Code Section 

4336 and contains an unconscionably [un]equal division of 

assets based on the record itself. Were the court to believe 

the assets are equal, the Court can simply re-enter the 

judgment.”

The court’s tentative ruling included setting a default prove-up hearing 

in which Jose would provide evidence as to the assets before the court, 

“including the value of assets that were not specifically mentioned in 

4 A different judge was assigned to hear Darlene’s request to set aside 

the judgment and entry of default than heard her first request to set aside 

the default.
5

documents prior to the full judgment prepared and entered, such that the 

Court has a good understanding of the value of all these assets and can make 

proper, legal orders under the law. And the authority that I would indicate 

would be Code of Civil Procedure Section 473(d).”5

After hearing further argument, the court adopted its tentative as the

ruling of the court and vacated that portion of the default judgment relating 

to property division and spousal support, and Jose was directed to prove-up 

the property values with no participation by Darlene.6 The court stated that 

it was vacating that property division and spousal support sections of the 

judgment because it did not find them “understandable,” and it found those 

portions of the judgment “in . . . violation of the law” and offensive to the 

court’s “sense of justice” and “sense of fairness.” Nevertheless, the court 

found no reason to allow Darlene to participate in the prove-up, noting: 

“When you refuse to participate by your own volition, you run the risk of 

having things happen that you wish hadn’t happened. That’s the importance 

of being served and knowing what’s going on in a case.”

The matter was then set for a default prove-up hearing. Darlene filed 

her notice of appeal on December 16, 2019. The automatic stay under section 

916 prevented the prove-up hearing from taking place. Jose filed a notice of 

appeal on February 6, 2020.

5 Initially, there was some confusion regarding Darlene’s participation in 

the default prove-up. However, the court made clear that only Jose would be 

participating in the prove-up hearing.

6 The court left in place the portions of the judgment addressing status 

and child support (the couple’s daughter was no longer a minor at the time of 

the October 17 hearing).
6

DISCUSSION

Both Darlene and Jose appeal the order that partially vacated the 

default judgment as that judgment related to division of marital property and 

spousal support. Because they each raise different issues, we will address 

their appeals separately. 

I

DARLENE’S APPEAL

Darlene’s appeal is not the model of clarity. She begins by arguing the 

superior court erred by failing to aside the default judgment because that 

judgment exceeded the scope of the relief requested in Jose’s dissolution 

petition. However, this contention borders on nonsensical because the court 

did set aside the portion of the default judgment dividing the marital 

property and addressing spousal support. So, Darlene’s argument that the 

judgment exceeds the relief requested in the petition is either moot or unripe 

because, in the instant action, there is no judgment dividing the marital 

property.7

Darlene also takes issue with how the court set aside the default 

judgment. To this end, she insists the court should have allowed her to 

interlineate the judgment to mirror the dissolution provision or provide Jose

with the opportunity to amend the dissolution petition and then allow 

Darlene to respond to the amended petition (effectively setting aside the 

7 Darlene correctly notes that a trial court’s determination that a 

judgment is void is subject to de novo review. (Cruz v. Fagor America, Inc.

(2007) 146 Cal.App.4th 488, 496.) Yet, here, the superior court and Darlene 

are in agreement—the judgment, at least concerning the division of marital 

property, was void. Instead, as we discuss post, Darlene disagrees with how 

the court set aside the judgment. 
7

default). Yet, after mentioning the possibility of interlineating the judgment, 

she does not discuss it further, focusing instead on the second option.

Below, the superior court denied the portion of Darlene’s motion to set 

aside the default. More specifically, the court noted that a different judge 

had previously denied Darlene’s motion to set aside, and the court saw no 

reason that the other judge was incorrect in so ruling. Here, Darlene does 

not appeal this portion of the order. Nor could she. An order denying a 

motion to set aside default is not appealable. (See Rappleyea v. Campbell

(1994) 8 Cal.4th 975, 981; First American Title Co. v. Mirzaian (2003) 108 

Cal.App.4th 956, 960.) We acknowledge that intermediate rulings are 

generally reviewable on an appeal from the final judgment by the party 

adversely affected by them. (Johnson v. Alameda County Medical Center

(2012) 205 Cal.App.4th 521, 531.) But there is no final judgment in the 

instant action. Thus, to the extent Darlene is attacking the court’s refusal to 

set aside the default, we cannot reach that argument considering the 

procedural posture of this case. (See Rappleyea v. Campbell, at p. 981.)

Consequently, the only argument remaining in Darlene’s appeal is 

whether the court abused its discretion in setting aside a portion of the 

default judgment. Darlene maintains the court should have given Jose the 

opportunity to amend his dissolution petition and then allow Darlene to 

respond to the amended petition. In other words, Darlene insists the court 

abused its discretion by not prescribing the exact solution she proposes here.

A trial court’s ruling on a motion to set aside a judgment is reviewed for 

abuse of discretion. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 

138.) The trial court’s factual findings are reviewed under the substantial 

evidence test. (In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 734; In 

re Marriage of Duffy (2001) 91 Cal.App.4th 923, 931.)
8

The linchpin of Darlene’s argument that the court abused its discretion 

is that the default judgment was in violation of section 580. Subdivision (a) 

of that section provides:

“The relief granted to the plaintiff, if there is no answer, 

cannot exceed that demanded in the complaint, in the 

statement required by Section 425.11, or in the statement 

provided for by Section 425.115; but in any other case, the 

court may grant the plaintiff any relief consistent with the 

case made by the complaint and embraced within the issue. 

The court may impose liability, regardless of whether the 

theory upon which liability is sought to be imposed involves 

legal or equitable principles.” (§ 580, subd. (a).)

Relying on Sass v. Cohen (2019) 32 Cal.App.5th 1032, review granted May 22, 

2019, S255262, Darlene argues that after the court set aside the default 

judgment, it had only two options: “(1) reduce the default judgment to the 

types and amounts of relief properly pled in the operative pleadings or 

(2) give the plaintiff the option of amending her pleadings to include the 

previously omitted types and amounts of relief.” (Id. at p. 1042.) She further 

argues that, because the Family Code requires a court to divide the 

community assets equally, the only option for the court here was to order 

Jose to amend the dissolution petition. 

As an initial matter, Darlene’s argument assumes that the superior 

court found that the default judgment violated section 580. Yet, she does not 

point to anywhere in the record where the court came to that conclusion. 

Instead, the court found the default judgment to be unfair, unjust, and 

“in . . . violation of the law.” Because the court did not base its conclusion to 

vacate a portion of the default judgment under section 580, we are not 

persuaded by Darlene’s arguments relying on that section. For this reason 

alone, Darlene’s argument fails.
9

In addition, even if section 580 were in play here, we do not share 

Darlene’s reading of the Court of Appeal’s opinion in Sass. As our high court 

pointed out, the issue facing the court in Sass was determining how the 

restrictions of section 580 apply to “the limitations inherent in an action for 

accounting.” (Sass v. Cohen (2020) 10 Cal.5th 861, 863 (Sass).) Specifically, 

the California Supreme Court noted: “[W]e must resolve whether a court 

may award monetary damages in a default judgment to a plaintiff who seeks 

an accounting when the complaint does not demand a specific amount of 

monetary damages but instead asserts a proportional interest in specified 

property.” (Id. at pp. 863–864.) Thus, the focus in Sass was on the interplay 

between an accounting cause of action, a default judgment, and section 580.

More relevant here, the Supreme Court noted that section 580 has been 

applied to marital dissolution actions. (See Sass, supra, 10 Cal.5th at

pp. 873–874, discussing In re Marriage of Lippel (1990) 51 Cal.3d 1160

(Lippel).)8 The court also discussed In re Marriage of Andresen (1994) 28 

Cal.App.4th 873 (Andresen), observing that the appellate court in that case 

“held that a plaintiff using a standard form petition to dissolve her marriage 

need only put the defendant on notice that she was seeking a type of relief, 

and not a specific amount.” (Sass, at p. 884; see Andresen, at p. 879 [“due 

process is satisfied and sufficient notice is given for section 580 purposes in 

marital dissolution actions by the petitioner’s act of checking the boxes and 

inserting the information called for on the standard form dissolution 

petition,” which does not solicit specific dollar amounts].) Our high court 

8 “The issue in Lippel was whether, in checking and not checking certain 

boxes contained in the standard form, the plaintiff put the defendant on 

notice that she was seeking a particular type of relief (child support).” (Sass, 

supra, 10 Cal.5th at p. 884.)
10

ultimately declined to extend Andresen to an accounting case, emphasizing 

that “Andresen was a marriage dissolution action[.]” (Sass, at p. 884.)

Because we are not dealing with a default judgment in an accounting 

action, we do not view the appellate court’s opinion in Sass v. Cohen, supra, 

32 Cal.App.5th 1032, review granted, or the Supreme Court’s opinion in Sass, 

supra, 10 Cal.5th 861 as particularly instructive in the instant matter. We 

certainly do not read either of those cases as requiring the superior court here 

to order Jose to amend his dissolution petition and allow Darlene an 

opportunity to respond to it. 

Below, the court found that the division of marital property in the 

default judgment was void and it vacated that portion of the judgment (along 

with the determination of spousal support). It then utilized its discretion to 

require Jose to prove-up the value of the community assets so that the court 

can consider a fair and equitable way to divide the community property. In 

eventually fashioning a default judgment that is fair to the parties, we are 

confident the superior court will comply with the dictates of section 580. 

(See, e.g., Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1527 [“the rule 

in Andresen ‘makes sense when applied to form complaints in marital 

dissolution actions,’ especially because in such actions ‘the court must value 

and divide the community estate of the parties equally . . . .’ [Citation.] Given 

that an equal division is required by law, the due process requirement of 

notice is satisfied if the spouse seeking dissolution of the marriage identifies 

the community assets to be divided in his or her petition and requests that 

the court divide those assets”]; but see In re Marriage of Kahn (2013) 215 

Cal.App.4th 1113, 1119 [refusing to apply Andresen to a marital dissolution 

action where the default judgment including $275,000 for breach of fiduciary 
11

duty and the form complaint did not indicate that the petitioner was seeking 

any particular amount of damages for that breach].)

In summary, we find nothing in the record persuading us that the 

superior court abused its discretion in vacating a portion of the judgment and 

setting up a prove-up hearing to allow Jose to prove the value of the assets to 

be divided to better allow the court to equally divide the community property

as required under the Family Code. 

II

JOSE’S APPEAL

Jose appeals the order vacating a portion of the judgment, claiming the 

court abused its discretion by vacating the judgment under section 473, 

subdivision (b).9 He points out that under subdivision (b) 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.” (§ 473, subd. (b).) Jose maintains that the evidence does 

not support any of the court’s conclusions that would allow the judgment to 

be vacated under section 473, subdivision (b). He also contends that Darlene 

did not prove the existence of any of the grounds required under Family Code 

section 2122 (actual fraud, perjury, duress, mental incapacity, mistake, and 

failure to comply with disclosure requirements) to vacate the judgment.

9 As a threshold matter, Darlene claims Jose’s appeal should be 

dismissed because it was untimely. It was not. Darlene does not point to any 

notice of entry of order in the record. We have found none. The order 

vacating a portion of the judgment was entered on October 17, 2019. As such, 

the parties had 180 days by which to file a notice of appeal. (See Cal. Rules of 

Court, rule 8.104(a)(1)(c).) Jose filed his notice of appeal on February 6, 2020, 

within 180 days of entry of the order. Accordingly, Jose’s appeal was timely.
12

However, Jose’s argument misses the mark. The court did not vacate 

the judgment under subdivision (b) of section 473. Nor did the court rely on 

Family Code section 2122. Rather, the court vacated the default judgment 

under section 473, subdivision (d). That subdivision provides that a trial 

court “may, on motion of either party after notice to the other party, set aside 

any void judgment or order.” (Ibid.) A trial court’s ruling on a motion for 

discretionary relief under section 473 will not be disturbed unless there is a 

clear showing that the trial court abused its discretion. (Strathvale 

Holdings v. E.B.H. (2005) 126 Cal.App.4th 1241, 1249 (Strathvale Holdings).) 

“The appropriate test for abuse of discretion is whether the trial court 

exceeded the bounds of reason.” (Ibid.)

“Perhaps the most fundamental rule of appellate law is that the 

judgment challenged on appeal is presumed correct, and it is the appellant’s 

burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 

Cal.App.4th 1567, 1573; see Universal Home Improvement, Inc. v. Robertson

(2020) 51 Cal.App.5th 116, 125 [same] (Universal Home Improvement).) “ ‘All 

intendments and presumptions are indulged to support [the judgment] on 

matters as to which the record is silent, and error must be affirmatively 

shown. This is not only a general principle of appellate practice but an 

ingredient of the constitutional doctrine of reversible error.’ [Citations.]”

(Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)

Here, Jose has not challenged the actual grounds on which the court 

relied to vacate the judgment. Instead, he argues the court abused its 

discretion in vacating a portion of the judgment under section 473, 
13

subdivision (b) and Family Code section 2122.10 Nonetheless, the court did 

not use either statute to vacate the judgment here. Instead, the court found 

the division of the community property in the judgment of dissolution to be 

unfair and unjust and vacated it as void under section 473, subdivision (d). 

Jose has not explained how the court abused its discretion in doing so. As 

such, he has not carried his burden on appeal. (See Universal Home 

Improvement, supra, 51 Cal.App.5th at p. 125.) 

DISPOSITION

The order is affirmed. The parties shall bear their own costs on appeal.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

O'ROURKE, J.

10 Jose does point out that the court stated it did not know whether the 

values of the property submitted in his community and quasi-community 

property declaration were accurate. That said, the court clearly was bothered 

by the lack of evidence submitted in support of the default judgment 

establishing the value and distribution of the community property. The court 

wanted additional information so it could “review it and make a 

determination about whether or not there’s a fair and equal distribution of 

the assets.” Certainly, such a goal is not beyond the bounds of reason. (See 

Strathvale Holdings, supra, 126 Cal.App.4th at p. 1249.)