Opinion
G059865
10-28-2022
In re Marriage of SANDRA and JAMES H. JOHNSON. v. JAMES H. JOHNSON, Respondent. SANDRA E. JOHNSON, Appellant,
Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Appellant. Michel &Rhyne, Karen A. Rhyne and Geoffrey D. Michel for Respondent.
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County, No. 12D011340 Julie A. Palafox, Judge. Affirmed.
Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Appellant.
Michel &Rhyne, Karen A. Rhyne and Geoffrey D. Michel for Respondent.
OPINION
MARKS, J. [*]
INTRODUCTION
Sandra E. Johnson (Sandra) appeals from the order denying her motion seeking to set aside the judgment on reserved issues entered in this marital dissolution action. She contends the trial court erred by failing to find her former spouse James H. Johnson (James) had engaged in actual fraud within the meaning of Family Code section 2122, subdivision (a) (section 2122(a)). In her motion, Sandra had argued that two years earlier, she changed her business address from the address she had on record with the court and, from that date forward, she no longer received service copies of court documents through the mail. Although she acknowledged she never filed or served a notice of change of address notifying James or the court of her address change as required by rule 2.200 of the California Rules of Court, she argued James could have contacted her by phone or e-mail and did not do so even though she believed he was aware of her address change.
We refer to the parties by their first names for clarity and intend no disrespect. All further statutory references are to the Family Code unless otherwise specified.
We affirm. Sandra failed to produce any evidence of actual fraud in support of her motion to set aside the judgment on reserved issues. It was her duty, not James's duty, under rule 2.200 of the California Rules of Court, to file and serve a notice of change of address but she did not do so. Furthermore, the record supports the trial court's finding that Sandra stopped participating in this action because she went "'off the grid' on her own accord" and not because of any fraud on James's part.
FACTS AND PROCEDURAL HISTORY
I.
SANDRA'S ADDRESS OF RECORD IN THIS MARITAL DISSOLUTION ACTION
In 2012, Sandra filed a petition for the dissolution of the parties' marriage. Litigation in this matter was delayed due to ongoing bankruptcy proceedings that had been initiated by Sandra.
In February 2017, Sandra, who had become self-represented, filed and served on James a notice of change of address requesting that "[a]ll notices and documents regarding the action should be sent to" an address on Westcliff Drive in Newport Beach (Sandra's address of record), which was the business address of her recently opened clothing boutique. Sandra does not contend, and our record does not show, that she ever filed another notice of change of address in this action. There is no dispute that after she filed and served the notice of change of address, Sandra was served at this address by the court clerk and James until Sandra filed a notice of limited scope representation in August 2020, after which retained counsel received service on Sandra's behalf.
II.
SANDRA DOES NOT APPEAR AT THE TRIAL SETTING CONFERENCE THAT WAS CONTINUED AT HER REQUEST, OR THE HEARINGS ON JAMES'S DISCOVERY MOTIONS AND MOTION TO BIFURCATE TRIAL ON MARITAL STATUS; JUDGMENT ON MARITAL STATUS IS ENTERED
The following year, in January 2018, the trial court issued a notice of trial setting conference set for March 20, 2018, which was continued to May 8. Also in March 2018, James filed a request for a separate trial on the dissolution of the status of the parties' marriage which was set to be heard on May 11. In early May, James filed a motion seeking an order compelling Sandra to produce documents responsive to James's prior production demand and a motion seeking to compel Sandra's deposition; both discovery motions were set for hearing on June 29.
On May 7, the day before the scheduled trial setting conference, Sandra filed a request to continue the hearing. She argued good cause supported her request because her sole day shift employee had suddenly quit without notice, and this left Sandra with no one to open the boutique at the time of the scheduled conference. Sandra asserted she needed 30 to 45 days to hire a new employee and thus asked the court to continue the trial setting conference to a date in late June or early July. Her request to continue the trial setting conference listed Sandra's address of record.
On May 8, 2018, the court ordered the trial setting conference set for that day continued to June 29, 2018, to allow it to be heard "with the other RFO's set for that date." On May 11, the court continued the hearing on James's request for bifurcation of trial on the parties' marital status to June 29, to allow that matter to also be heard with the other matters set for that date (e.g., the trial setting conference and James's discovery motions).
Sandra did not appear at the June 29 hearing. At that hearing, the court ruled: (1) Sandra's deposition was to be conducted or completed on or before August 8, 2018; (2) James's motion to compel documents was granted and Sandra was ordered to respond within 30 days; (3) the trial setting conference was further continued to October 30, 2018; (4) the motion for bifurcation of marital status was granted and the parties' marital status was terminated as of the date of the hearing; and (5) the court would consider imposing sanctions against Sandra at the time of trial.
In addition, judgment of dissolution terminating the parties' marital status was entered on June 29, 2018 (June 2018 judgment). The June 2018 judgment stated that "[j]urisdiction is reserved over all other issues, and all present orders remain in effect as provided below." The court clerk served Sandra by mail with a copy of the June 2018 judgment at Sandra's address of record. James served notice of the continuance of the trial setting conference, notice of ruling on his bifurcation request, and notices of rulings on the discovery motions at Sandra's address of record.
In August 2018, James filed a motion seeking an award of sanctions for Sandra's failure to comply with the orders requiring her to produce documents and attend her deposition. Sandra had neither responded to the document request nor appeared at her deposition.
At the hearing on the motion for sanctions held a couple of months later in October, the trial court found that Sandra had failed to comply with (1) authorized methods of discovery regarding property division and spousal support and (2) the court's order to produce documents and appear for her deposition. The court granted James's request for evidentiary sanctions and ordered that Sandra was precluded from presenting any evidence with respect to issues of property division and spousal support at the time of trial. The court reserved the issue of whether to award monetary sanctions against Sandra until trial.
On October 17, 2018, James served Sandra with a copy of the court's findings and order after hearing at Sandra's address of record. That same month, he also served Sandra, at Sandra's address of record, with notice of the mandatory settlement conference set for December 4, and notice of trial, set for December 18.
III.
FOLLOWING TRIAL, JUDGMENT ON RESERVED ISSUES IS ENTERED
Trial was held on December 18, 2018, as noticed. In its minute order, the trial court noted Sandra received notice of the trial and did not appear. Noting the court had jurisdiction to proceed in her absence, the court heard James's counsel's opening statement and received oral and documentary evidence.
The court's judgment on reserved issues was entered on March 8, 2019 (the March 2019 judgment). In the March 2019 judgment, the trial court: (1) found Sandra had received proper notice of trial but did not appear at trial and had previously been the subject of evidentiary sanctions; (2) terminated the right of either party to receive support from the other; (3) charged Sandra for receipt of certain community funds or community property; (4) awarded James four community bank accounts of a combined value of $26,712; (5) awarded James sanctions against Sandra in connection with James's discovery motions in the total amount of $5,600 (the court reserved jurisdiction over the balance of the request by James for an award of attorney fees and costs); and (6) found Sandra owed James a total equalizing payment in the amount of $274,225.38 "which is due and payable forthwith."
The court's support ruling was based on the following findings: "The Court finds that this was a long term marriage. However, the totality of the evidence shows that [Sandra] is currently living a lifestyle similar to during the marriage. [Sandra] is self supporting and living in a home in Huntington Harbor which the court is aware is an upper middle class lifestyle. Further the Court is aware of serious breaches of the fiduciary duty by [Sandra] that will take many years for [James] to recover from."
The court charged Sandra $100,000 for homestead funds she received from the bankruptcy court; for receipt of a Rolex watch valued at $4,799; $20,000 for the community furniture and furnishings; $100,000 for the community's interest in her business; $160,176 for the rental value of the rental home Sandra moved into without paying the mortgage; $27,509 for the realtor commission Sandra received; $25,000 for the moving costs Sandra received; $44,200 for rental income Sandra received after the date of separation without her having paid the mortgage; $10,000 for the mortgage check Sandra received without paying the mortgage; and Sandra's receipt of $2,789.38 from James's separate property.
James's attorney served Sandra a copy of the March 2019 judgment at Sandra's address of record on March 13, 2019.
IV.
SANDRA'S MOTION TO SET ASIDE THE MARCH 2019 JUDGMENT Almost 18 months after the March 2019 judgment was entered, on
September 1, 2020, Sandra, through recently retained counsel, filed a motion to set aside the March 2019 judgment on the ground of "extrinsic fraud" under section 2122(a). In the declaration she filed in support of her motion, Sandra stated that, since the parties' separation in October 2012, she had consistently appeared at every hearing the court set in both the bankruptcy and family law cases until 2018.
Sandra's motion stated she sought to set aside the June 2018 judgment. At the hearing on the motion to vacate/set aside, the court clarified with Sandra's counsel that Sandra intended to challenge the March 2019 judgment, and not the June 2018 judgment.
Sandra further stated in her declaration that on May 7, 2018, four days before the May 11 noticed hearing date on James's motion to bifurcate the trial on status she "contacted the court clerk and e-mailed Attorney Loretta Gow[a]n at Michel-R[h]yne, James' attorney's office, stating [she] was requesting a continuance because [her] only employee at the boutique who worked day shifts unexpectedly quit over the weekend, and [she] had no one else who could man the store besides [her]self." Attached as exhibit A to Sandra's declaration is the e-mail thread between her and Gowan. The e-mail thread however shows Sandra had contacted Gowan about seeking a continuance of the May 8 trial setting conference which she refers to in the e-mail as "tomorrows hearing," and she attached a copy of her request to continue the trial setting conference that she had filed with the court. Neither the e-mail thread nor its attachments referred to James's motion to bifurcate trial on the parties' marital status or the hearing on at motion set for May 11. Sandra does not point to any court record or communication in which she requested a continuance of the hearing on James's motion to bifurcate.
Sandra stated in her declaration that James's attorney Karen Rhyne emailed her later that day in which she stated that "the hearing" was scheduled for 9:00 a.m. and that Sandra could ask for priority before her store was scheduled to open at 10:00 a.m. Sandra stated she e-mailed Rhyne back explaining that her store opened at 9:30 a.m. and "the drive was 30 minutes to an hour depending on traffic, and [she] would never make it back in time." Sandra's declaration stated that, on an unspecified date, "[a]ttorney Gow[a]n then called me at the boutique, just as I was arriving. She advised me she would not agree to my requested continuance, but told me I didn't need to be at the hearing anyway, since the hearing was for the bifurcation only, and they would appear in my absence."
Sandra's declaration did not address whether she was aware that the May 11 hearing on James's motion to bifurcate did not go forward that day (or that the trial setting conference did not go forward on May 8) and was in fact continued to June 29- the same date set for the continued trial status conference and the hearings on James's discovery motions, for all of which she was presumably served with notice at Sandra's address of record (Sandra does not contend otherwise).
In her declaration, Sandra further stated that on June 25, 2018 (a few days before the June 29 hearing) she moved her boutique from the business suite located at Sandra's address of record, which she expressly acknowledged in her declaration was "the address on file with this Honorable Court," to a new suite with a new address in Newport Beach (the new address). She stated that "on or around" the date she moved the boutique, she submitted a mail forwarding order to the United States Post Office. She believed the forwarding order was in effect because she received mail at the new address. She stated she "later" learned (at an unspecified time) that the United States Post Office was unable to forward personal mail from one business address to another business address, that her personal mail was being returned to sender, and that she had to personally notify senders of the new address.
Sandra's declaration continued to state that, after "[t]he bifurcation motion was granted in [her] absence," Gowan e-mailed her the conformed copies of the June 2018 judgment and also stated in her e-mail that she had mailed Sandra "a physical copy as well." Sandra's declaration does not address whether she received the physical copy of the June 2018 judgment that was mailed to her.
Sandra declared: "Attorney Gow[a]n's e-mail did not mention a new court date. Because it included a judgment, I believed the case was over, as James and I had been through bankruptcy and there were no assets left to divide except for James' medical practice. I could not afford an attorney at that time to go after my half of his medical practice, so I did not pursue any further court action." Sandra further stated she never received another e-mail from Gowan or Rhyne. She stated she did not thereafter appear at any court proceeding until September 2020 when she filed her motion to vacate the March 2019 judgment.
Sandra stated: "I did not put in a change of address with the court like I had done when I moved the previous time, because I believed there was a final judgment in my divorce case and it was not necessary. Attorney Gow[a]n had e-mailed me the judgment and I did not receive any further correspondence from her via e-mail, so I believed I was done with my divorce." Sandra stated she was "completely blindsided" when a year and a half later in December 2019, she received a letter from a collections attorney seeking to collect on the March 2019 judgment. She stated: "It turned out Ms. Gowen's [sic] representation that the hearing was for the bifurcation only was not true. From a review of the court docket, I learned on the date of the hearing, James not only had status entered, but had participated in a trial setting conference and hearing on his motions to compel compliance at a deposition and to compel production of documents."
She stated that even though she had communicated by e-mail and by phone with James's attorney's law office before the June 2018 judgment had been entered (without offering any specifics as to regularity or subject matter), she did not receive an e-mail or a phone call from Rhyne or Gowan after that time. She further stated: "The court and Attorney Rhyne must have received returned mail from me, since the notice of entry was returned to the court clerk. It was clear from the docket that I was not receiving my mail, which is why I believe this was a purposeful attempt to keep me in ignorance of the proceedings and to fraudulently prevent me from fully participating."
In a declaration filed in opposition to Sandra's motion to set aside, Rhyne stated, inter alia: (1) at all times, Sandra was served at the address she gave to court as an in pro per litigant; (2) Gowan is a legal assistant and not an attorney; (3) Gowan "never spoke to [Sandra] other than to verify that [Sandra] was at her store on one occasion"; (4) no one ever told Sandra that she did not have to appear at a hearing; and (5) Rhyne's law office did not receive any returned mail throughout 2018. In another declaration filed in opposition to Sandra's motion to set aside, James stated that this matter has been "mired in the bankruptcy court for the last six years" and that Sandra's bankruptcy proceedings were still not completed. He stated he believed she was intentionally delaying the matter, having stated to him in a text: "'I am coming after your money like no other in this divorce and including all your assets in my Bk will end up tied up in court for five years.'" James added that Sandra "has been successful in the delays as we are in year six (6)."
Sandra stated: "In spite of all my participating in all prior court proceedings except one, no one called or e-mailed me to ensure I was aware of the court proceedings or to inquire of my conspicuous absence."
V. THE TRIAL COURT DENIES SANDRA'S MOTION TO SET ASIDE THE MARCH 2019 JUDGMENT
The trial court denied Sandra's motion to vacate the March 2019 judgment. In the court's findings and order after hearing, the court found the trial judge who had presided at the December 2018 trial had found Sandra was given proper notice "with respect to the trial and the judgment entered thereafter." Citing Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13 (Kramer), the court found no exceptional circumstances supported equitable relief under section 2122.
The court rejected Sandra's argument that "there was extrinsic fraud because [James] knew she had moved, knew where she was living, had her e-mail address, had her phone numbers, and did not make any attempts to reach her besides mailing to a defunct address." The court found insufficient evidence of extrinsic fraud based on the following circumstances:
"a. The fact that the docket showed [Sandra]'s mail was returned did not give notice to the other side that the mail was being returned. It is not [James]'s obligation according to the California Rules of Court to find out where [Sandra] is living. The obligation is solely and squarely [Sandra]'s. [Sandra] knew of that obligation and had previously filed the appropriate change of address. A self-represented litigant is expected to receive the same treatment as if represented by an attorney and is required to file the same notice forms to the court.
"b. The fact that [Sandra] received notice of a pending deposition and motions to compel before she moved indicates she had knowledge there were still pending matters in her case following the status-only judgment.
"c. [Sandra] had been representing herself for almost two years, had filed numerous pleadings and proofs of service, and had contacted the court on numerous occasions. The court finds she went 'off the grid' on her own accord, similar to the parties in the Kramer case.
"d. [Sandra]'s motion was timely filed, but it lacked diligence, which is required when seeking equitable relief. The court needed [Sandra] to account for her lack of diligence, i.e. to provide some evidence why this motion was brought nine months after entry of the judgment. [Sandra] never presented any evidence in a declaration from [Sandra] as to what was going on in those time periods to account for the delay."
In its findings and order, the trial court also stated it had denied James's request for sanctions under Code of Civil Procedure section 128.5. That ruling is not at issue in this appeal.
Sandra filed her notice of appeal in January 2021, after the trial court had denied the motion to vacate the March 2019 judgment in a minute order, but before the trial court issued its findings and order on May 19, 2021. This court granted Sandra's unopposed application to treat Sandra's prematurely filed notice of appeal as having been filed immediately after entry of the May 19, 2021 findings and order.
DISCUSSION
I.
OVERVIEW OF STATUTORY FRAMEWORK FOR SEEKING RELIEF FROM JUDGMENTS IN MARITAL DISSOLUTION ACTIONS AND THE GOVERNING STANDARD OF REVIEW
In 1993, the Legislature added a chapter entitled Relief From Judgment to the Family Code. (§§ 2120-2129, added by Stats. 1993, ch. 219, § 108, pp. 1615-1617; Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1143 (Rubenstein).) The Legislature found and declared, inter alia, (1) the state of the law "governing the circumstances under which a judgment can be set aside, after the time for relief under Section 473 of the Code of Civil Procedure has passed, has been the subject of considerable confusion which has led to increased litigation and unpredictable and inconsistent decisions at the trial and appellate levels" (§ 2120, subd. (d)); (2) the State of California has a strong policy of ensuring the division of community and quasicommunity property in accordance with law and of providing for fair and sufficient support awards, a policy which can be undermined by the nondisclosure or other misconduct of one of the parties (§ 2120, subds. (a) &(b)); and (3) "the public policy of assuring finality of judgments must be balanced against the public interest in ensuring proper division of marital property, . . . and in deterring misconduct" (§ 2120, subd. (c)).
In accordance with its findings and declarations, "the Legislature specified in section 2122 the time within which to bring an action or motion to set aside a dissolution judgment based on fraud, perjury and other grounds." (Rubenstein, supra, 81 Cal.App.4th at p. 1143; In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684 ["Section 2122 sets out the exclusive grounds and time limits for an action or motion to set aside a marital dissolution judgment"]); see § 2121, subd. (a) ["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 limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter"].)
Section 2122 provides in relevant part: "The grounds and time limits for a motion to set aside 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." Before granting relief, the trial court "shall find the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief." (§ 2121, subd. (b).) Such a showing of prejudice is not only mandated by statute, it is mandated by the California Constitution. (Cal. Const., art. VI, § 13; In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 526.)
We review the trial court's ruling on a motion to set aside a judgment for abuse of discretion. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.) We review the trial court's factual findings 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.)
II. SANDRA FAILED TO PRODUCE ANY EVIDENCE OF ACTUAL FRAUD
In her motion seeking to set aside the March 2019 judgment, Sandra solely relied upon the "actual fraud" ground for relief under section 2122(a) and argued she "was kept in ignorance of the proceedings on which [that judgment] was based by the conduct of James and his counsel." The record shows, however, that Sandra bears the responsibility for her ignorance of the court proceedings, and is devoid of any evidence the March 2019 judgment was the product of actual fraud within the meaning of 2212(a).
Sandra does not dispute that (1) she was self-represented in February 2017 when she filed and served on James's counsel a notice of change of address listing her Westcliff business address (Sandra's address of record) as the one to be used for "for service of notices and documents"; (2) the trial court, James, and Sandra herself thereafter used Sandra's address of record on and for service of court documents; (3) James never failed to serve Sandra with any document that was required to be served at Sandra's address of record and Sandra does not challenge the validity of any of James's proofs of service; and (4) Sandra never notified the court or James that her address ever changed after February 2017 in violation of rule 2.200 of the California Rules of Court. Sandra does not challenge the trial court's observation that although Sandra was in pro per, she understood court procedures as she "had been representing herself for almost two years, had filed numerous pleadings and proofs of service, and contacted the court on numerous occasions."
So where is the evidence James engaged in "actual fraud" within the meaning of section 2122(a) in securing the March 2019 judgment? In her opening brief, Sandra argues: "Upon being put on notice Sandra was not receiving mail at the address on file with the court, in spite of being in possession of Sandra's e-mail address and phone number, James and his counsel began exclusively serving Sandra by mail at the defunct address, so Sandra was kept in ignorance of the proceedings and kept from participating in the dissolution of marriage trial. The conduct of James and his counsel, directed at preventing Sandra from having actual knowledge of the legal proceedings, constituted actual fraud warranting set-aside of the Judgment."
There are at least a couple of problems with Sandra's argument. First, the record does not show how James was "on notice" she was not receiving mail at Sandra's noticed address. Sandra cites to an entry on the court docket that showed the June 2018 judgment that had been mailed to Sandra's address of record by the court clerk was later returned to the court on July 23, 2018, which she argues thereby "put[] everyone on notice Sandra was no longer at that address." There is no evidence in the record that James or his counsel were aware of the court docket entry. To the contrary, James's counsel Rhyne stated in her declaration filed in opposition to the motion to vacate the March 2019 judgment that she "was unaware any mail had been returned to the court until this motion was received. As I never reviewed the registry of action. All mail we sent throughout 2018 appeared to have been received." Rhyne further stated that her law office "did not receive any mail returned throughout 2018." Rhyne added in her declaration that when Sandra moved her boutique's location in June 2018 from Sandra's address of record, she moved "approximately 4-6 doors down from the original store in the same strip mall [making it] inconceivable that she did not receive her mail."
In any event, even if James knew Sandra was no longer receiving mail at Sandra's address of record, his continuing course of serving her at Sandra's address of record might reflect a lack of courtesy and cooperation but would fall short of the "actual fraud" standard required to set aside a judgment under section 2122(a). Sandra does not contend she was unable to file a notice of change of address when she moved her boutique or was confused about doing so; she just did not do it.
This case, therefore, is distinguishable from cases in which a judgment has been held to have been properly set aside when it was rendered in a party's absence that, unbeknownst to the trial court, but known to the other party, was involuntary. In In re Marriage of Park (1980) 27 Cal.3d 337, 339, 347 (Park), the Supreme Court concluded the trial court had abused its discretion by denying the wife's motion to vacate the judgment entered in the marital dissolution action. During the pendency of the parties' marital dissolution litigation, the wife was arrested in the presence of the husband and was then involuntarily deported to Korea. (Id. at p. 340.) Due to the swiftness of the wife's deportation, she was unable to notify her attorneys that she had been deported. (Ibid.) The trial court was thereafter informed that the wife was in Korea but was given no indication by counsel or the husband that the wife had been involuntarily deported- "[o]n the contrary, the testimony of [the husband] and the statement of his attorney suggested a voluntary departure." (Id. at p. 341.)
In concluding the judgment should have been set aside, the Supreme Court stated: "In the present case, [the wife]'s involuntary deportation rendered her incapable of attending her dissolution proceeding. [The husband] was well aware of his wife's inability to be present and contest the action. Disclosure of his wife's disability to the court might have resulted in the postponement of the dissolution proceeding until [the wife] could be present. Clearly, [the husband] had a duty to inform the court of the extrinsic facts that prevented his wife's attendance. [Citations.] By concealing those facts, [the husband] breached his duty of disclosure and perpetrated a fraud upon the court as well as his wife." (Park, supra, 27 Cal.3d at p. 343; see Landon v. Landon (1946) 74 Cal.App.2d 954, 955-956 [judgment in dissolution proceeding set aside because the wife knowingly concealed from the court that the husband's absence from the litigation had been due to his having been detained in China following the outbreak of war between the United States and Japan during World War II and his unsuccessful attempts to return to this country].)
Unlike the Park and Landon cases, the record here does not show, and Sandra does not argue, that James had concealed from the court knowledge about Sandra's ability to receive mail at Sandra's address of record. If anything, the court, having on one occasion received returned mail it had originally sent to Sandra, had greater knowledge if any that Sandra was no longer receiving mail at Sandra's address of record.
Second, the record does not support Sandra's suggestion that James adjusted his method of service to mailings at Sandra's address of record once he allegedly realized that she was not receiving mail at that address in order to prevent her from participating in the ongoing litigation. As discussed ante, the record does not show James had actual or constructive knowledge that Sandra was unable to receive mail at Sandra's address of record. Sandra does not point to any document in this time period by citations to the record, other than a conformed copy of the June 2018 judgment, that was sent to her by James via e-mail. When that document was sent to Sandra via e-mail as a courtesy copy, it was with the stated understanding she was being served with a copy at Sandra's address of record. Sandra, therefore, should have been on notice that something was amiss when she did not receive that service copy in the mail.
Furthermore, Sandra does not argue that she ever agreed to accept electronic service under Code of Civil Procedure section 1010.6, subdivision (a)(2)(A)(i) or that she was ever formally served with any document via e-mail. Therefore, James should have always served Sandra by mail at Sandra's address of record until notified otherwise. It appears to be Sandra's position that when she stopped participating in the litigation, it was incumbent upon James to not only serve her at Sandra's address of record, but to reach out to her via e-mail or give her a call to confirm she was aware of the documents that had been indisputably properly served on her. That is not what the law requires, and James's failure to so reach out under the circumstances does not constitute actual fraud.
In her motion to vacate the March 2019 judgment, Sandra also argued actual fraud was demonstrated by her May 2018 e-mail communications with Gowan. In her declaration, Sandra asserted that, after speaking with Gowan on May 7 regarding Sandra's request for a continuance of the hearing on the motion to bifurcate marital status then scheduled for May 11, Gowan told her that James would not agree to a continuance of the hearing "because the hearing was for the bifurcation only and [Sandra] did not have to attend." Sandra stated "[b]ased on Ms. Gowan's representation, I did not attend the May 11, 2018 hearing." She further stated when she received a conformed copy of the June 2018 judgment and "[t]his email [sic] was the last time [she] heard from James' counsel . . . she assumed the case was over since a judgment was entered."
Not only are the facts underlying Sandra's argument unsupported by the record, the conclusions she draws from them are incorrect. The record shows that on May 7, 2018, the day before the trial setting conference, Sandra filed request to continue the trial setting conference, not the hearing on the motion to bifurcate marital status then set to be heard on May 11. In her request to continue the trial setting conference, she did offer the same reason for needing a continuance as she stated in her declaration that she had offered in seeking a continuance of the motion to bifurcate. Oddly, in that declaration in which she solely asserted she sought a continuance of the hearing on the motion to bifurcate, she incorporated by reference e-mail correspondence with Gowan, a copy of which she attached as an exhibit to her declaration. That e-mail correspondence solely addresses Sandra's request to continue the trial setting conference; there is no mention of the motion to bifurcate in the e-mail correspondence.
In any event, the record shows that on May 8, 2018, the trial court ordered the trial setting conference continued to June 29, 2018, to allow it to be heard at the same time as the hearing on James's discovery motions which, earlier in May, had been continued for that same June 29 date. Sandra did not move her boutique until June 25, 2018. She does not contend that she did not receive notice in May that not only would James's motion to bifurcate marital status be heard on June 29, but that the trial setting conference and hearing on James's discovery motions would be held that day as well. Sandra's contention that James's refusal to agree to a continuance on May 7 of the motion to bifurcate marital status resulted in her being unable to thereafter participate in the litigation is simply without any support. Her declarations are silent as to whether she was able to attend the hearings on June 29. Furthermore, her argument that her receipt of the June 2018 judgment led her to assume the case was over is belied by the language of the judgment itself which expressly states that "[j]urisdiction is reserved over all other issues, and all present orders remain in effect except as provided below."
Given the lack of any evidence of actual fraud, Sandra's motion to vacate the March 2019 judgment was without merit.
III.
TO THE EXTENT THE TRIAL COURT ERRED BY RELYING ON EQUITABLE PRINCIPLES OUTSIDE OF SECTION 2122(a) IN DENYING THE MOTION TO VACATE, ANY SUCH ERROR IS HARMLESS GIVEN THE ABSENCE OF ACTUAL FRAUD
In her opening brief, Sandra argues the trial court erred by relying on Kramer, supra, 56 Cal.App.5th at pages 31-33 in denying her motion to vacate the 2019 March judgment because that case did not involve an order vacating a judgment entered in a marital dissolution action governed by section 2122(a), but on general equitable principles that do not apply here.
In its findings and order, citing Kramer, the trial court and found no exceptional circumstances existed to support equitable relief under section 2122. In addition, the trial court stated that although the motion to vacate had been timely filed under section 2122(a), "it lacked diligence, which is required when seeking equitable relief." The court stated it "needed [Sandra] to account for her lack of diligence, i.e. to provide some evidence why this motion was brought nine months after entry of the judgment. [Sandra] never presented any evidence in a declaration from [Sandra] as to what was going on in those time periods to account for the delay."
In Kramer, supra, 56 Cal.App.5th at page 19, an employee filed a wage and hour lawsuit against her employer and its alleged alter ego. After the defendants answered the complaint, their counsel withdrew from representation and the defendants thereafter chose not to participate in the case. (Ibid.) The plaintiff employee continued to serve the defendants with all case documents at their address of record. (Ibid.) But the defendants, in violation of the California Rules of Court, had changed their mailing address without giving notice to the plaintiff or the trial court and therefore did not receive the documents that were served on them after their counsel had withdrawn. (Ibid.) After default and default judgment were entered against the defendants, they successfully sought equitable relief on the grounds of extrinsic mistake and fraud. (Id. at pp. 19-20.)
A panel of this court reversed the trial court's order granting the defendants' motion to set aside the default and the default judgment, reasoning in part: "Equitable relief from a default judgment is reserved for exceptional circumstances. None exist here. To the extent defendants were unaware of the amended complaint, it was due to their own negligence. They chose not to participate in the proceedings. They also missed every document served on them, including the amended complaint, because they failed to inform the trial court and plaintiff of their current mailing address." (Kramer, supra, 56 Cal.App.5th at p. 20.)
Citing rule 2.200 of the California Rules of Court, the Kramer court held "'[t]he "person to be served" has the burden of notifying the court of any change of address, and failure so to do does not enable him to claim improper notice.'" (Kramer, supra, 56 Cal.App.5th at p. 31.) Rule 2.200 provides: "An attorney or self-represented party whose mailing address, telephone number, fax number, or e-mail address . . . changes while an action is pending must serve on all parties and file a written notice of the change." (Italics added.)
The Kramer court further stated: "'Countenancing a litigant's blatant disregard of the judicial process and rules has serious downsides. It invites other litigants to ignore the laws and rules and renders the process unfair to most other litigants and counsel who endeavor to comply with them. It also undermines trial courts' ability to manage their caseloads and, in turn, to serve other litigants in a timely way...." . . . It would also thwart vital 'policies [which] favor getting cases to trial on time, avoiding unnecessary and prejudicial delay, and preventing litigants from playing fast and loose with the pertinent legal rules and procedures.' [Citation.] 'When inexcusable neglect is condoned even tacitly by the courts, they themselves unwittingly become instruments undermining the orderly process of the law.'"'" (Kramer, supra, 56 Cal.App.5th at p. 32.)
Kramer bears some factual similarities to the instant case, and we agree with the Kramer court that the person who is to be served in the litigation has the burden of notifying the court of any change of address, and that that person is foreclosed from claiming improper service when he or she fails to carry that burden by complying with rule 2.200 of the California Rules of Court. The record supports the trial court's finding in the instant case that Sandra had gone "'off the grid' on her own accord," similar to the parties in the Kramer and was not the victim of fraud.
But we agree with Sandra, however, that equitable principles applied in Kramer, which was not a marital dissolution action, differ from those applicable to a motion vacating a judgment in a marital dissolution action. "Prior to the enactment of section 2120 et seq., the law recognized a distinction between extrinsic fraud, which was a basis for setting aside a judgment even after the expiration of the six-month period under Code of Civil Procedure section 473, and intrinsic fraud, such as perjury, which was not a valid ground for relief. [Citation.] '"Extrinsic fraud occurs when a party is deprived of his opportunity to present his claim or defense to the court, where he was kept in ignorance or in some other manner fraudulently prevented from fully participating in the proceeding. [Citation.] Examples of extrinsic fraud are: concealment of the existence of a community property asset, failure to give notice of the action to the other party, convincing the other party not to obtain counsel because the matter will not proceed (and it does proceed)."'" (Rubenstein, supra, 81 Cal.App.4th at p. 1144, fn. 7, italics omitted.)
Section 2120 et seq. apply to dissolution judgments adjudicating support or division of property entered on or after January 1, 1993, and as to such judgments all prior law on "equitable" set-aside relief is preempted. (See §§ 2121, subd. (a), 2129; Hogoboom &King, Cal. Practice Guide: Family Law (The Rutter Group 2012) ¶ 16:101, (2022).) While section 2122(a)'s actual fraud ground for vacating a judgment tracks the general parameters for traditional equitable set aside relief as explained in In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1060-1067, there are differences. (Hogoboom &King, supra, ¶ 16:101 (2022).)
We do not need to address the extent of the differences between the standards that applied before enactment of section 2122(a) and those applied after enactment of that statute, or the degree to which the trial court here might have relied on equitable standards that no longer apply to motions to vacate judgments in marital dissolution actions brought on grounds of actual fraud under section 2122(a). For the reasons we discussed ante, Sandra's motion to vacate the 2019 judgment was not supported by any showing of actual fraud. Therefore, the trial court did not have discretion to do anything other than deny Sandra's motion on this record.
IV.
SANDRA'S APPEAL TO EQUITY
In direct conflict with her argument the trial court erred by deviating from the legal standards of section 2122(a) and applying equitable standards in ruling on her motion to vacate the March 2019 judgment, Sandra argues in the final section of her opening brief that "the trial court erred by failing to exercise its equitable powers to ensure a just result." She argues in that section and elsewhere in her brief that the March 2019 judgment should have been set aside because it reflects an inequitable and unjust division of property and support obligations.
For the reasons we have discussed, the Legislature has declared that by adding the Relief from Judgment chapter to the Family Code, it endeavored to balance "[t]he public policy of assuring finality of judgments . . . against the public interest in ensuring proper division of marital property" (§ 2120, subd. (c)) and to eliminate confusion regarding the circumstances under which a judgment can be set aside (§ 2120, subd. (d)). Section 2122 sets forth the exclusive grounds for setting aside a judgment in a marital dissolution action after the time period for seeking relief under Code of Civil Procedure section 473 has expired. (In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 87.)
Sandra's argument that the March 2019 judgment should be vacated because it reflects an inequitable division of property and support fails not only because that ground is not included in section 2122. The Legislature has expressly rejected inequitable division of property as a ground for vacating a judgment in section 2123, which provides: "Notwithstanding any other provision of this chapter, or any other law, a judgment may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate."
DISPOSITION
The postjudgment order is affirmed. Respondent to recover costs on appeal.
WE CONCUR: O'LEARY, P. J. MOORE, J.
[*]Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.