Marriage of Nishida & Kamoda

Filed 4/30/26




                        CERTIFIED FOR PUBLICATION

        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         FOURTH APPELLATE DISTRICT

                                   DIVISION THREE


 In re the Marriage of MIZUKI
 NISHIDA and MASASHI KAMODA.

 MIZUKI NISHIDA,
                                                G064200
     Appellant,
                                                (Super. Ct. No. 14D000683)
                v.
                                                OPINION
 MASASHI KAMODA,

     Respondent.



                Appeals from orders of the Superior Court of Orange County,
Julie A. Palafox and Sheila Recio, Judges. Reversed in part and affirmed in
part.
                De Novo Law Firm and Benjamin A. Yrungaray for Appellant.
                Masson Fatini, Richard E. Masson and Susan M. Masson for
Respondent.
                               *         *          *
                              INTRODUCTION
            The marriage of Mizuki Nishida and Masashi Kamoda was ended
by a judgment of dissolution entered in November 2018. In December 2018,
Kamoda and Nishida entered into a stipulation to divide a remaining
community asset. In January 2020, Nishida filed a civil lawsuit alleging she
was fraudulently induced by Kamoda to enter into that stipulation.
            The civil court transferred Nishida’s lawsuit to the family law
court, 1 where it eventually was dismissed as untimely pursuant to Family
Code section 2122. 2 Nishida appeals from the order dismissing her case, as
well as an order denying her motion for leave to amend and an order made by
the civil court granting Kamoda’s motion for relief from default.
            We conclude the family law court erred by dismissing Nishida’s
lawsuit. Transfer of Nishida’s civil lawsuit to the family law court resolved
any issues regarding proper jurisdiction between the civil court and the
family law court. Although Nishida probably should have filed a set aside
motion under section 2122 in the family law court, her civil lawsuit was
timely filed and imparted notice to Kamoda of her fraud and breach of
fiduciary duty claims. The family law court erred by denying Nishida’s
motion for leave to amend because leave to amend should be liberally granted
and Nishida sought to amend the complaint to seek remedies afforded under
the Family Code. Finally, we conclude, the civil court did not err by granting
Kamoda’s motion for relief from default.


            1 We use the term “family law court” to refer to a court within the

Family Law Division of the California Superior Court, County of Orange and
the term “civil court” to refer to a court within the Civil Division of the same
court.
            2 Further statutory references are to the Family Code unless

otherwise designated.

                                       2
                 FACTS AND PROCEDURAL HISTORY
               I. Judgment of Dissolution and Stipulation
            In 2014, Nishida filed a petition for dissolution of her marriage to
Kamoda. In November 2018 a judgment of dissolution was entered. The
judgment divided the community property, which included Kamoda’s
retirement benefit called the “Fourteen Golf Letter of Agreement” (the
Retirement Asset) At trial, the family law court found that the value of the
Retirement Asset to be $108,000 and that Nishida and Kamoda each had a 50
percent interest in it. The court ordered that the Retirement Asset be divided
equally when received by Kamoda and reserved jurisdiction over it.
            In December 2018, Nishida and Kamoda entered into a
stipulation by which they agreed the current value of the Retirement Asset
was $74,520 of which Nishida would receive $37,260. Nishida and Kamoda
agreed that Kamoda would pay Nishida the $37,260 in 12 monthly
installments starting on January 1, 2019. Nishida and Kamoda also agreed
that Nishida would waive her right to appeal from the judgment of
dissolution and from the stipulation. The stipulation was signed by a court
commissioner and entered as a court order.


                 II. Proceedings in the Civil Law Court
A. Nishida’s Complaint and Kamoda’s Default
            In January 2020, Nishida filed a civil complaint against Kamoda
in which she asserted causes of action for fraud and breach of fiduciary duty.
Nishida alleged that Kamoda had misrepresented to her in late 2018 that he
was going to be fired by his employer, Fourteen Golf, and, in reliance on that
misrepresentation, she agreed to the stipulation by which she received only
$37,260 from the Retirement Asset. We refer to this case as the Civil Action.

                                       3
            After Kamoda failed to file a timely answer, Nishida had a
default entered against him in the Civil Action. Kamoda brought a motion
pursuant to Code of Civil Procedure section 473, subdivision (b) to set aside
the entry of default based on counsel’s mistake, inadvertence, surprise, or
neglect. The civil court found that “counsel’s affidavit of fault is sufficient to
set aside the default,” and granted Kamoda’s motion.


B. Kamoda Motion for Judgment on the Pleading and the Civil Court’s Order
   to Show Cause
            Kamoda appeared, filed an answer, and, in December 2022, filed
a motion for judgment on the pleadings. In the motion, Kamoda argued the
civil court lacked jurisdiction because the family law court had exclusive
jurisdiction over all marital dissolution issues, and the family law court
expressly retained jurisdiction in the stipulation.
            In February 2023, the civil court expressed concern over “the
viability of this civil tort action on jurisdictional grounds, as it appears to
arise from alleged misrepresentations regarding community property that
resulted in a family law dissolution judgment. The court stated: “Sections
2120 et seq. of the Family Code appear to be the exclusive remedies for
Plaintiff [Nishida's] allegations and accordingly she may not now collaterally
attack the family law judgment in a separate unlimited civil lawsuit.” The
court set an order to show cause re “Why Case Should Not Be Dismissed or
Transferred to Family Law Court” (the OSC re transfer) and invited the
parties to submit briefing. The hearing on Kamoda’s motion for judgment on
the pleadings was continued to the same date as the OSC re transfer.
            On the same day as the issuance of the OSC re transfer, Nishida
filed a motion for leave to file a first amended complaint.


                                         4
C. Transfer to the Family Law Court
             The civil court heard Kamoda’s motion for judgment on the
pleadings on May 12, 2023, and on May 17 issued a ruling on that motion and
the OSC re Transfer. The court adopted its tentative ruling, issued five days
earlier, which stated: “Pursuant to Rubenstein [v. Rubenstein (2000) 81
Cal.App.4th 1131] and res judicata principles, Sections 2120 et seq of the
Family Code appear to be the exclusive remedies for Plaintiff’s allegations.
Whether framed as ‘subject matter jurisdiction’ or this civil court
department’s ‘authority to act and make orders’ is matter of semantics. At the
very least, the family court enjoys ‘priority of jurisdiction’ over Plaintiff’s
claims. The court finds that Plaintiff’s claims are an improper attempt to
collaterally attack the family law judgment in a separate unlimited civil
lawsuit.” The tentative ruling also stated that Nishida’s proposed
amendments to the complaint, which would have renamed the causes of
action and sought remedies under the Family Code, supported transferring
the matter to the family law court. The civil court deemed Kamoda’s motion
for judgment on the pleadings to be moot.
             The civil court transferred the Civil Action to the family court,
where it was reassigned to a new judge. The Civil Action was consolidated
with the family law case for hearing purposes and the family law case was
designated the lead case.

                   III. The Family Law Court’s Order to
                          Show Cause re Dismissal
             During a status conference in November 2023, the family law
court raised the issue of family law court jurisdiction. The court stated: “I am
going to ask both parties to take the position whether the case that is now in
the family court, which is the complaint that was transferred by Judge Recio,

                                         5
should that be dismissed for lack of jurisdiction?·Tell me why.” The family
law court, on its own motion, set an order to show cause “why the civil matter
should not be dismissed” (the OSC re dismissal).
               Nishida submitted briefing in which she argued the Family Code
expressly authorized her to bring her breach of fiduciary duty claim as a civil
action rather than as a family law matter, and thus the only options available
to the family law court were to proceed on the matter or send it back to the
civil court. Nishida also pointed out that the civil court had denied as moot
Kamoda’s motion for judgment on the pleadings, which sought dismissal for
lack of jurisdiction.
               Kamoda filed briefing in which he argued Nishida’s complaint
should be dismissed because the statute of limitations of section 2122 barred
Nishida’s breach of fiduciary duty claim. Kamoda also argued “[t]he problem
is not that [Nishida]’s Complaint was filed in the civil court rather than the
family law court”; rather, the problem was that Nishida’s complaint did not
seek relief under section 2122 from the judgment of dissolution or the
stipulation.
               At the hearing on the order to OSC re dismissal, the family law
court found that Nishida’s complaint was exclusively within the jurisdiction
of the family law court and that neither the judgment of dissolution nor the
stipulation precluded a fraud cause of action. However, the court concluded
that Nishida’s claims were time-barred under sections 2020 and 2122.
               Nishida’s counsel in response stated he had not briefed the issue
of the statute of limitations because he believed the order to show cause was
directed only to the issue of jurisdiction. Nishida’s counsel asked for an
opportunity to file supplemental briefing. The court granted the request and
instructed counsel to focus the briefing on section 2122. In supplemental

                                         6
briefing, Nishida’s counsel objected to the court’s procedure as unfair and
contrary to the adversarial system of adjudication. Counsel argued the
complaint was timely under section 2122 because the complaint alleged
Nishida had discovered Kamoda’s fraud in late 2019 and was filed in January
2020, well within the one–year limitations period.


                      IV. Dismissal of the Civil Action
            In a written ruling issued on March 21, 2024, the family law
court dismissed the Civil Action. The court concluded the Civil Action was
subject to family law court jurisdiction because Nishida had alleged Kamoda
had made misrepresentations while Nishida and Kamoda were negotiating a
family law property settlement. The court rejected Nishida’s argument that
the family law court lacked jurisdiction to dismiss the Civil Action and that
the court’s briefing schedule resulted in a denial of due process. The court
concluded that Nishida’s proposed amendments would only change the
headings of the Civil Action and would “have no impact on [Nishida]’s failure
to file a timely set aside motion in family [law] court.”
            Finally, the family law court concluded (1) the Civil Action was
time–barred by section 2122 because it was not filed in the family law court
within one year of when the fraud allegedly occurred and (2) section 1101 was
inapplicable.




                                        7
                                 DISCUSSION


              I. The Family Law Court Erred by Dismissing
                             the Civil Action

A. Jurisdiction Issues Were Resolved by Transferring the Civil Action to the
   Family Law Court
             We agree with the family law court that it had priority over the
claims presented in the Civil Action. “After a family law court acquires
jurisdiction to divide community property in a dissolution action, no other
department of a superior court may make an order adversely affecting that
division.” (Askew v. Askew (1994) 22 Cal.App.4th 942, 961; see Glade v. Glade
(1995) 38 Cal.App.4th 1441, 1450 [“Given the family law court’s broad
jurisdictional authority where the right to and disposition of community
property are concerned, we conclude . . . the family law court had priority of
jurisdiction here”].)
             The family law court erred, however, to the extent it based its
dismissal of the Civil Action on lack of family law court subject matter
jurisdiction. As the family law court recognized, “there is no separate ‘family
court’ per se.” Indeed, “‘family court’ refers to the activities of one or more
superior court judicial officers who handle litigation arising under the Family
Code. It is not a separate court with special jurisdiction, but is instead the
superior court performing one of its general duties.” (In re Chantal S. (1996)
13 Cal.4th 196, 201 (Chantal S.) “‘[I]f one department exercises authority in a
matter which might properly be heard in another such action, although
“irregular,” it does not amount to a defeat of jurisdiction.’” (People v.
Madrigal (1995) 37 Cal.App.4th 791, 795.) “Where the conflict is merely
between judges of different departments of the same court, it would seem


                                         8
that subject matter jurisdiction is not affected . . . .” (2 Witkin, Cal. Proc. (6th
ed. 2026) Courts, § 284.)
             Besides, any jurisdictional issue was resolved when the Civil
Action was transferred to the family law court. If family law causes of action
are incorrectly filed as a civil lawsuit, they are properly transferred to the
family law court. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131,
1152 [“Because this matter arises under the Family Code, the matter is
remanded to the family court for further proceedings”]; Morgan v. Somervell
(1940) 40 Cal.App.2d 398, 400; People v. Superior Court (1930) 104 Cal.App.
276, 281 [superior court has “inherent power to transfer a case to another
department of the same court”]; see also Code Civ. Proc., § 402, subd. (a)(3) [if
a case is filed in the wrong court, “the court may transfer the case on its own
motion to the proper court location”].) Having been transferred to the family
law court, the Civil Action was in the proper court having jurisdiction over it.
             None of the cases cited by the family law court or Kamoda
support dismissal for lack of jurisdiction. Burkle v. Burkle (2006) 144
Cal.App.4th 387, Neal v. Superior Court (2001) 90 Cal.App.4th 22, and d’Elia
v. d’Elia (1997) 58 Cal.App.4th 415 all confirm the unremarkable proposition
that disputes arising out of family law matters such as property division and
compliance with dissolution stipulations and judgments belong in family law
court, not civil court. None of those cases hold that a family law matter filed
in civil court cannot be transferred to the family law court or that, once
transferred to family law court, should be dismissed.




                                         9
B. The Civil Action Was Timely Under Section 2122

            1. Was It Proper for the Family Law Court to Have Raised
               Section 2122 on Its Own?
            Kamoda did not assert the statute of limitations of section 2122,
subdivision (a) or any other time bar as an affirmative defense in his answer.
The trial court raised the statute of limitations on its own initiative and, in
connection with the OSC re dismissal, found that Nishida’s claims were
time–barred. Nishida argues that by so doing, the family law court violated
its duty of neutrality and the “party presentation” principle (United States v.
Sineneng–Smith (2020) 590 U.S. 371, 376) and denied her due process.
            The statute of limitations is usually considered an affirmative
defense and may be deemed waived or forfeited if, as here, it is not asserted
by the defendant. (E.g., Adams v. Paul (1995) 11 Cal.4th 583, 597 [“The
statute of limitations is an affirmative defense that is forfeited if not
appropriately invoked by the defendant”]; Shenefield v. Kovtun (2024) 106
Cal.App.5th 925, 934 [“If not timely and appropriately invoked by a
defendant, a statute of limitations defense is waived”].)
            The justification offered by Kamoda for the family law court first
raising the time bar of section 2122, subdivision (a) is that its time limits are
jurisdictional and may be raised at any time, either by a party or the court.




                                        10
The authority for that proposition is slim indeed. 3 We need not weigh in on
that subject because, we conclude, the family law court erred by dismissing
the Civil Action.

            2. The Civil Action Was Filed Within Two Years of Nishida’s
               Discovery of the Alleged Fraud
            There are three statutory remedies in the family law court for
postjudgment relief based on breach of fiduciary duty. The first remedy is
provided by Code of Civil Procedure section 473, subdivision (b). It grants a
court discretion to set aside a judgment based on the grounds of mistake,
inadvertence, surprise, or excusable neglect within six months after entry of
judgment. (In re Marriage of Georgiou & Leslie (2013) 218 Cal.App.4th 561,
570.)
            After the time period for seeking relief under section 473 has
elapsed, section 2120 et seq. provides the exclusive grounds and time limits
for an action or motion to set aside a marital dissolution judgment
adjudicating division of property. (In re Marriage of Georgiou & Leslie, supra,
p. 570.) Section 2120, subdivision (a) recognizes that “[t]he State of California


            3 In effect, no authority supports the proposition that the time

limits of section 2122 are jurisdictional. Only two cases address the matter.
In In re Marriage of Georgiou & Leslie (2013) 218 Cal.App.4th 561, 575 the
Court of Appeal stated that because the wife had not filed her set aside action
within the one–year limitations period of section 2122, subdivision (f), “the
family court lacked jurisdiction over the matter and summary adjudication
was proper.” In support of that proposition the court cited one authority: In re
Marriage of Thorne & Raccina (2012) 203 Cal.App.4th 492, 501. In that case,
the Court of Appeal concluded the six-month period under Code of Civil
Procedure section 473, subdivision (b) and the one-year period under section
2122, subdivision (e) had expired and “[t]he trial court therefore had no
jurisdiction to modify the judgment in this case.” (Marriage of Thorne &
Raccina, supra, at page 500, italics added.) In support of that proposition, the
Court of Appeal cited nothing and provided no analysis.

                                       11
has a strong policy of ensuring the division of community and quasi-
community property in the dissolution of a marriage” and that “[t]he public
policy of assuring finality of judgments must be balanced against the public
interest in ensuring proper division of marital property, in ensuring sufficient
support awards, and in deterring misconduct.” (§ 2120, subds. (a), (c).) 4
            Relevant here is subdivision (a) of section 2122 (section 2122(a)),
which provides: “The grounds and time limits for a motion to set aside a
judgment, or any part or parts thereof, are governed by this section and shall
be one of the following: [¶] (a) Actual fraud where the defrauded party was
kept in ignorance or in some other manner was fraudulently prevented from
fully participating in the proceeding. An action or motion based on fraud
shall be brought within one year after the date on which the complaining
party either did discover, or should have discovered, the fraud.”
            Finally, section 1101, subdivision (a) establishes that a spouse
has a claim against the other spouse “for any breach of the fiduciary duty
that results in impairment to the claimant spouse’s present undivided one-
half interest in the community estate.” A claim for breach of fiduciary duty
under section 1101 must be commenced “within three years of the date a
petitioning spouse had actual knowledge that the transaction or event for
which the remedy is being sought occurred.” (§ 1101, subd. (d)(1).)




            4 Section 2121, subdivision (a) states, in relevant part, “[i[n

proceedings for dissolution of marriage . . . , the court may, on any terms that
may be just, relieve a spouse from a judgment, or any part or parts thereof,
adjudicating support or division of property, after the six-month time limit of
Section 473 of the Code of Civil Procedure has run, based on the grounds, and
within the time limits, provided in [Family Code sections 2120 et seq.].”


                                       12
            The family law court concluded the Civil Action was untimely
under section 2122(a) because it was not filed in the family law court before
December 15, 2019, which was one year after the stipulation was entered as
an order. 5 The family law court concluded that section 1101 was inapplicable
to Nishida’s claims because a breach of fiduciary duty claim seeking to set
aside a property division judgment that had adjudicated a particular asset or
liability is subject to the time limits of section 2122, not those of section 1101,
subdivision (d). (See In re Marriage of Georgiou & Leslie, supra, 218
Cal.App.4th at pp. 574–576; In re Marriage of Thorne & Raccina, supra, 203
Cal.App.4th at p. 501.)
            The family law court erred by concluding the Civil Action was
time–barred under section 2122(a). Nishida and Kamoda entered into the
stipulation in December 2018. Nishida alleged that from October through
December 2018 Kamoda “represented in multiple declarations under penalty
of perjury that he was going to be imminently fired from his employer,
Fourteen Golf, and that the decision to terminate him had already been
made, thereby arguably triggering ‘immediate and specific tax liability.’” She
alleged that based on those representations, she agreed to take only $37,260
from the Retirement Asset.
            Nishida alleged those representations were false because
Kamoda had not been terminated from his employment. She alleged that
“[she] discovered [Kamoda]’s continued employment in late 2019 by
conducting internet research into M[asashi]’s employment status, and


            5 It is undisputed that the Civil Action was commenced more

than six months after the stipulation was entered as a court order and
therefore was untimely under Code of Civil Procedure section 473,
subdivision (b).

                                        13
discovered a November 4, 2019 press release indicating that [Kamoda] was
still employed with Fourteen Golf.” Nishida filed the Civil Action just a few
months later, in January 2020.
            As Nishida’s counsel argued, the family law court’s OSC re
dismissal was effectively a demurrer or motion for judgment on the
pleadings. In reviewing a judgment resulting from the sustaining of a
demurrer or granting a motion for judgment on the pleadings, we assume the
truth of the properly pleaded allegations of the complaint. (Schifando v. City
of Los Angeles (2003) 31 Cal. 4th 1074, 1081; People ex rel. Harris v. Pac
Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777.) We therefore accept
as true Nishida’s allegations that she did not discover the fraud until late
2019. The one–year period of section 2122(a) commences when the
complaining party discovered, or should have discovered, the fraud. Nishida
filed the Civil Action in January 2020, just a few months after she alleged she
discovered the fraud, which was well-within the one–year limitations period
of section 2122. Indeed, Kamoda agrees that Nishida’s civil complaint was
“timely filed within the one–year discovery period.”


            3. Initially Filing in the Family Law Court Was Unnecessary to
                Obtain Relief Under Section 2122
            The family law court concluded that to obtain relief under section
2122 for fraud, Nishida had to have filed a set aside motion in the family law
court before December 15, 2019. We disagree.
            Nishida filed a civil complaint within the limitations period, and
although she perhaps should have filed a set aside motion in the family law
court, she did file her complaint in the Orange County Superior Court, and
that is sufficient. (See Chantal S., supra, 13 Cal.4th at p. 201 [family law


                                       14
court “is not a separate court with special jurisdiction”]; 2 Witkin, Cal. Proc.,
supra, Courts, § 284 [“subject matter jurisdiction is not affected” in conflict
between “different departments of the same court”].) A matter incorrectly
filed as a civil law action can be transferred to the family law court, as the
Civil Action was in this case.
            We do not see the possible mistake of filing an action instead of a
set aside motion to be fatal. Section 2122 permits “an action or motion based
on fraud.” (See Hogoboom et al., Cal. Practice Guide: Family Law (The Rutter
Group 2024) ¶¶ 16:135, 16:136, p. 16–44 (italics added).) Nishida filed an
action. As with so many family law issues, there is no case law on when to file
an action and when to file a set aside motion, and the correct one to file in
this case was not altogether clear. 6 If necessary to prevent dismissal and
permit a decision on the merits, the complaint (as amended) could simply be
treated as a set aside motion under section 2122(a).



            6 The Rutter Group treatise on family law makes the comment

that a set aside motion is the proper way to proceed under section 2120 so
long as the underlying marital dissolution action is pending in family law
court. (Hogoboom et al., supra, Cal. Practice Guide: Family Law, ¶ 16:136 at
p. 16-44.) Relief is properly sought by separate action “once the underlying
[marital] dissolution proceeding becomes ‘final’ (no support, custody/visitation
orders and the time for appeal has passed) and the family court thus loses
jurisdiction over the matter.” (Ibid.)

             Here, the judgment of dissolution had been entered, there were
no custody or visitation orders, and the time to appeal had passed. Although,
under the judgment of dissolution, the family court retained the “broadest
possible jurisdiction . . . to enforce all provisions and resolve all disputes
arising here from,” under the stipulation, the family law court retained
jurisdiction only over the payments and the subject residence until paid in
full. The final payment on the Retirement Asset was due on December 1,
2019.

                                       15
            More importantly, filing the complaint satisfied the general
purposes of a statute of limitations. Those purposes are to “protect
defendants from the stale claims of dilatory plaintiffs” and “to stimulate
plaintiffs to assert fresh claims against defendants in a diligent fashion.”
(Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 395.) Nishida diligently
pursued her claims of fraud and breach of fiduciary duty against Kamoda.
Her complaint, though not filed as a set aside motion in family law court,
imparted notice of her allegations of fraud and breach of fiduciary duty, and
those same allegations could form the basis for a set aside motion under
section 2122. The labels placed by Nishida on her claims are not important:
In considering whether a complaint pleads facts entitling the plaintiff to
relief, “[e]rroneous or confusing labels attached by the inept pleader are to be
ignored.” (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.)
            Allowing Nishida to proceed, even if she mistakenly filed an
action instead of a set aside motion, comports with the policies advanced by
section 2120 et seq. Assuring the finality of judgments is an important policy,
but, as section 2120 explains, that policy is not controlling and must be
balanced against “the public interest in ensuring proper division of marital
property, in ensuring sufficient support awards, and in deterring
misconduct.” (§ 2120, subds. (a), (c).)

               II. The Family Law Court Erred by Denying
                         Nishida Leave to Amend
            In February 2023, before the Civil Action was transferred to the
family law court, Nishida brought a motion for leave to amend her complaint
by (1) changing the name of the fraud cause of action to “Family Code section
2122,” (2) adding that the breach of fiduciary duty cause of action was
pursuant to section 1101, (3) changing the remedies sought from tort

                                          16
damages to “award of division up to an additional $72,740” and “[a]ll
remedies under Family Code section 1101,” and (4) deleting the request for
punitive and treble damages. The civil court denied Nishida’s motion for
leave to amend on the ground amendment would be futile.
            Although denial of leave to amend is reviewed for abuse of
discretion, “motions for leave to amend are liberally granted.” (Royalty Carpet
Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1124.) Under that
standard, we believe the motion for leave to amend should have been granted
here. The amendments would have brought the complaint in conformance
with the requirements of the Family Code. As we have noted, the labels and
titles placed by Nishida on her complaint are not controlling (Saunders v.
Cariss, supra, 224 Cal.App.3d at p. 908.) Instead, the court must look to “the
actual gravamen” of the complaint “to determine what cause of action, if any,
he stated, or could have stated if given leave to amend.” (McBride v.
Boughton (2004) 123 Cal.App.4th 379, 387.)
            Leave to amend may be denied if amendment would not cure the
defects in the pleading. (Royalty Carpet Mills, Inc. v. City of Irvine, supra,
125 Cal.App.4th at p. 1124.) The family law court found the proposed
amendments would be futile because they would “have no impact on
[Nishida]’s failure to file a timely set aside motion in family court” and would
not “convert a civil case into a family law post judgment set aside.” As we
have concluded, the Civil Action was timely under section 2122(a),
jurisdiction issues were resolved by transferring the matter to the family law
court and filing an action instead of a set aside motion, if incorrect, was not
fatal. The family law court did not find, and Kamoda does not argue, that
Nishida’s complaint fails to plead facts sufficient to state a claim for relief
under section 2122, subdivision (a). Thus, granting leave to amend to allow

                                        17
Nishida to rename her causes of action and restate the remedies sought to
conform to sections 2122 and 1101 would not have been futile.
              We do not address whether Nishida may seek relief under section
1101. That issue may be raised by an appropriate motion or challenge to the
pleadings in the family law court.

           III. The Civil Court Did Not Err by Granting Kamoda’s
                       Motion for Relief From Default
              Nishida argues the civil court erred by granting Kamoda’s motion
for relief from default. 7 We conclude the civil court did not err by granting
Kamoda relief from default.


A. Background
              Nishida filed her civil complaint on January 21, 2020. According
to the proof of service filed with the court, substitute service of the summons
and complaint was made on March 20, 2020 after six attempts at personal
service.
              Nishida first attempted to file a request for entry of default
against Kamoda on June 10, 2021. The court clerk rejected that request for
entry of default on the ground Nishida had not served a statement of
damages pursuant to Code of Civil Procedure section 425.115.
              On July 8, 2021, Kamoda’s counsel filed a declaration in support
of an automatic 30–day extension of time pursuant to Code of Civil Procedure
section 435.5. Counsel declared that he intended to file a motion to strike


              7 An order granting relief from entry of default only, and not to

vacate a default judgment, is reviewable on an appeal from a final judgment
or order. (Code Civ. Proc., § 906; Johnson v. Alameda County Medical Center
(2012) 205 Cal.App.4th 521, 531.)

                                        18
Nishida’s request for punitive damages and therefore was entitled to the
automatic extension of time. Nishida attempted to file requests for entry of
default on July 14 and 17, 2021, but the court clerk rejected them on the
ground Kamoda had filed a declaration pursuant to Code of Civil Procedure
section 435.5. The court clerk had also rejected a request for entry of default
on July 16 on the ground it was accompanied by a declaration asserting the
clerk had improperly rejected the request made on July 14. 8
            On August 10, 2021, the court clerk entered a default against
Kamoda. On the same day, Kamoda tried to file an answer. The court clerk
rejected the answer because a default had been entered.


B. Kamoda’s Motion to Set Aside Entry of Default
            Kamoda brought a motion pursuant to Code of Civil Procedure
section 473, subdivision (b) to set aside the entry of default on the ground of
attorney error. Kamoda’s counsel submitted a declaration stating he had
calendared the wrong date as the deadline for responding to the complaint.
Counsel declared that the thirtieth day after the filing of the declaration
regarding the 30–day automatic extension of time under section 435.5 was
Saturday, August 7, 2021, making the deadline for responding to the
complaint Monday, August 9, 2021 but that he had made a calendaring error
by concluding the response was due on Tuesday, August 10, 2021. Counsel
attempted to electronically file an answer on August 10, but the clerk rejected
the filing on the ground a default had been entered four hours earlier.
Counsel declared: “The calendaring error on my part gave Plaintiff the


            8 Nishida also claims to have attempted to file a request for entry

of default on July 21, 2021. She provides no record citation and we have
found nothing in the record to show that she made such an attempt.

                                       19
opportunity to request the entry of default, and the entry of default was the
direct result of [defense counsel’s] mistake in calendaring an erroneous date
for Defendant’s deadline to file a responsive pleading.” (Underscoring
omitted.)
             Nishida opposed the motion for relief from default on the same
grounds which she raises in this appeal.
             The civil court granted the motion for relief from default. The
court found: “Defendant’s attorney submitted a declaration explaining he
miscalendared the due date for Defendant’s motion to strike, calendaring the
deadline as August 10, 2021, instead of August 9, 2021. . . Defendant’s
counsel’s affidavit of fault is sufficient to set aside the default.”


C. Background Law and Standard of Review
             Code of Civil Procedure section 473, subdivision (b) contains
distinct provisions for discretionary relief and mandatory relief from default. 9
(Bailey v. Citibank, N.A. (2021) 66 Cal.App.5th 335, 348.) Discretionary relief
is reserved for excusable neglect, while mandatory relief applies even to
inexcusable neglect of an attorney resulting in his or her client’s default if the
attorney submits an adequate affidavit of fault. (Ibid.) When the attorney


             9 The mandatory relief provision of section 473, subdivision (b),

states as follows: “Notwithstanding any other requirements of this section,
the court shall, whenever an application for relief is made no more than six
months after entry of judgment, is in proper form, and is accompanied by an
attorney’s sworn affidavit attesting to his or her mistake, inadvertence,
surprise, or neglect, vacate any (1) resulting default entered by the clerk
against his or her client, and which will result in entry of a default judgment,
or (2) resulting default judgment or dismissal entered against his or her
client, unless the court finds that the default or dismissal was not in fact
caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

                                         20
submits a compliant affidavit, relief from default is mandatory even if the
attorney’s neglect was inexcusable. (Id. at p. 349) “However, relief may be
denied if the court finds the default was not in fact the attorney’s fault, for
example when the attorney is simply covering up for the client’s neglect.”
(Ibid.)
            An order granting or denying relief under Code of Civil Procedure
section 473, subdivision (b) is reviewed under the abuse of discretion
standard. (Shapell SoCal Rental Properties, LLC v. Chico's FAS, Inc. (2022)
85 Cal.App.5th 198, 212 (Shapell).) Whether the requirements for mandatory
relief under section 473, subdivision (b) have been satisfied is reviewed under
the substantial evidence standard if the evidence is disputed and under the
de novo standard if the evidence is undisputed. (Bailey v. Citibank, N.A.,
supra, 66 Cal.App.5th at p. 348.)
            “‘“[T]he provisions of section 473 of the Code of Civil Procedure
are to be liberally construed and sound policy favors the determination of
actions on their merits.” [Citation.]’ [Citation.] ‘[B]ecause the law strongly
favors trial and disposition on the merits, any doubts in applying section 473
must be resolved in favor of the party seeking relief from default.’” (Maynard
v. Brandon (2005) 36 Cal.4th 364, 371-372.)


D. Nishida’s Arguments Do Not Support Reversal
            Based on counsel’s declaration attesting to his mistake,
inadvertence, surprise, or neglect, the civil court was obliged under section
473, subdivision (b) to grant Kamoda’s motion for relief from default. The
civil court found the default or dismissal was in fact caused by the attorney’s
mistake, inadvertence, surprise, or neglect. The court also found that Nishida
has not shown any prejudice from granting relief from default.

                                        21
            Nishida challenges the order granting relief from default on
several grounds. First, she argues that Kamoda’s answer was actually 15.5
months late because Kamoda had been substitute served on March 20, 2020.
Nishida did not, however, seek to enter a default until June 2021.
            Second, Nishida argues the court clerk erred by rejecting her
efforts to file a request for entry of default on June 10 2021. The court clerk
rejected that request for entry of default on the ground Nishida was seeking
punitive damages but had not served a statement of damages under Code of
Civil Procedure section 425.115. Nishida asserts the clerk erred because, she
argues, section 425.115 states that a default judgment for punitive damages
may not be entered without service of a statement of damages.
            Nishida is incorrect. Subdivision (f) of section 425.115 states:
“The plaintiff shall serve the statement [of damages] upon the defendant
pursuant to this section before a default may be taken, if the motion for
default judgment includes a request for punitive damages.” Although
subdivision (f) has a verb tense issue—it should read “the plaintiff shall have
served the statement”—its meaning in clear. “In an action in which the
plaintiff seeks to recover punitive damages, the plaintiff can reserve the right
to seek punitive damages on a default judgment by serving a statement of
punitive damages on the defendant before the defendant’s default is taken.”
(Matera v. McLeod (2006) 145 Cal.App.4th 44, 60, italics added; see Heidary
v. Yadollahi (2002) 99 Cal.App.4th 857, 867 [“[I]f punitive damages are to be
awarded in a default judgment, the defendant must be notified of the specific
amount sought prior to entry of the default”].) The clerk was correct to reject
the request for entry of default made on June 10, 2021.
            Next, Nishida argues the court clerk erred by rejecting her
requests for entry of default on July 14 and 17, 2021. The court clerk rejected

                                       22
those requests on the ground Kamoda had filed a declaration pursuant to
Code of Civil Procedure section 435.5 on July 8. Nishida argues the 30–day
extension of Code of Civil Procedure 435.5 had no effect because it extended
the time to file a motion to strike only from April 29, 2020 (the date on which
the response to the complaint was due) to May 29, 2020. Code of Civil
Procedure section 435.5, subdivision (a)(2) states, “[t]he 30-day extension
shall commence from the date the motion to strike was previously due, and
the moving party shall not be subject to default during the period of the
extension.” As Nishida points out, the date on which Kamoda’s motion to
strike was previously due was April 29, 2020—40 days after the date of
service (Code of Civ. Proc., § 412.20, subd. (a)(3), 415.20, subd. (b)). The
thirtieth day after April 29, 2020 was May 29, 2020, long before counsel filed
his section 435.5 declaration.
            However, Nishida took no action to compel the clerk to enter the
default. Although she submitted a declaration to the clerk explaining the
clerk’s error, she did not seek a court order requiring the clerk to enter the
default. We cannot reverse the court clerk, as Nishida suggests we do,
because our jurisdiction extends only to appealable orders and judgments,
and Nishida did not seek a court order to correct the clerk’s rejection of her
requests for entry of default.
            Accordingly, as things stand, the default against Kamoda was
entered on August 10, 2021 and not earlier. The calendaring mistake made
by his counsel therefore did in fact result in the entry of default because,
absent the mistake, counsel would have filed Kamoda’s answer on August 9,
2021—one day before the default was entered.
            Nishida claims it “makes no sense” that counsel would have made
a calendaring mistake. The trial court is the exclusive judge of the credibility

                                        23
of witnesses testifying by declaration (Shapell, supra, 85 Cal.App.5th at pp.
217-218), and the trial court impliedly found Kamoda’s counsel to be credible.
Counsel’s declaration was not “incredible on its face, inherently improbable,
or wholly unacceptable to reasonable minds.” (TRC Operating Co., Inc. v.
Chevron USA, Inc. (2024) 102 Cal.App.5th 1040, 1106.)
            Nishida argues that the true cause of Kamoda’s default was not
miscalendaring by counsel but Kamoda avoiding service of process and, once
served, by “refus[ing] to recognize the jurisdiction of the court” until Nishida
tried to have a default entered. Assuming Kamoda did avoid service, that
could not have been the cause of the default because default could only be
entered once he had been served.
            If Kamoda “refused to recognize the jurisdiction of the court,”
Nishida failed to hold him accountable for over a year. According to the proof
of service, Kamoda was served by substitute service on March 20, 2020, yet
Nishida did not attempt to have his default entered until June 10, 2021.
Kamoda’s counsel declared that he confirmed with Kamoda that “neither he
nor anyone in his household was served with the Verified Complaint” and
that Kamoda “learned of the lawsuit through an unrelated legal service
offering representation.” Counsel declared that on July 2, 2021, he had
located the complaint online and obtained a copy of it and on July 8, just six
days later, filed his declaration under Code of Civil Procedure section 435.5.
To the extent necessary to uphold the order granting relief from default, we
presume the civil court found those assertions to be true. (Cohen v. TNP 2008
Participating Notes Program, LLC (2019) 31 Cal.App.5th 840, 859 [“we
presume the court found every fact and drew every permissible inference
necessary to support its judgment or order”]; Shapell, supra, 85 Cal.App.5th
at pp. 217-218.)

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                               DISPOSITION
            The order dismissing the Civil Action and the order denying
Nishida’s motion for leave to amend are reversed and the matter is remanded
for further proceedings. The order granting Kamoda’s motion for relief from
default is affirmed. Nishida may recover costs on appeal.




                                          SANCHEZ, J.

WE CONCUR:



MOTOIKE, ACTING P. J.



SCOTT, J.




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