Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. LS018614, Frank J. Johnson, Judge.
Edward Keker, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Appellant Edward Keker appeals from an order denying his motion to set aside a judgment on sister state judgment filed on June 3, 2009, in favor of respondent Peggy Maynard in the amount of $30,643.73. Appellant contends that the judgment should have been set aside based upon a violation of his due process rights and upon fraud. We disagree and affirm.
FACTS
On July 15, 1999, a judgment of dissolution of marriage was entered in Cook County, Illinois, dissolving the marriage of appellant and respondent, at the time residents of Illinois. Subsequent post-dissolution judgments were entered on February 5, July 2, and November 10, 2008, in favor of respondent. On May 5, 2009, respondent filed her application for entry of judgment on sister state judgment. The judgment was entered on June 3, 2009, and notice of entry of the California judgment was served on appellant on August 3, 2009. On September 2, 2009, appellant filed his motion to set aside the sister state judgment. On September 21, 2009, respondent filed her opposition to the motion to set aside. The trial court denied the motion at a hearing on October 5, 2009.
DISCUSSION
Generally speaking, the full faith and credit clause of the federal Constitution obligates a state to honor judgments from the courts of sister states. (U.S. Const., art. IV, § 1; see also 28 U.S.C. § 1738 [federal statute codifying full faith and credit clause].) “‘[A] sister state money judgment entered pursuant to the provisions of the Uniform Act may be vacated in California only when the statutory ground or grounds therefor have been established.’” (Traci & Marx Co. v. Legal Options, Inc. (2005) 126 Cal.App.4th 155, 158.) For purposes of the Uniform Act, a sister state judgment is “that part of any judgment, decree, or order of a court of a state of the United States, other than California, which requires payment of money....” (Code Civ. Proc., § 1710.10, subd. (c).) Unless otherwise provided, a judgment entered pursuant to the Uniform Act has “the same effect as an original money judgment of the court and may be enforced or satisfied in like manner.” (§ 1710.35.)
Uniform Sister State Money Judgments Act (Code Civ. Proc., § 1710.10 et seq.).
All further statutory references are to the Code of Civil Procedure.
A party seeking to set aside a sister state judgment under section 1710.40, has “the burden to show by a preponderance of the evidence why [he or she is] entitled to relief.” (Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd. (1993) 12 Cal.App.4th 74, 88.) “The ruling on a motion to set aside a judgment rests in the sound discretion of the trial court and will not be set aside on appeal unless a clear abuse of discretion appears. [Citations.] On appeal of the trial court’s ruling on such a motion, we view all factual matters most favorably to the prevailing party.” (Id. at pp. 88-89.)
Due Process
Appellant contends that the sister state judgment should not be enforced because his due process rights were violated. We disagree.
The record is replete with evidence that appellant was not deprived of his due process rights and was an active participant in the proceedings. During the dissolution proceedings which resulted in the ultimate money judgments against appellant, both parties resided in Illinois. There were numerous proceedings filed in Cook County, Illinois, many filed by appellant. In addition, on page 30 of appellant’s moving papers to set aside the sister state judgment, he states, “EDWARD acknowledges that according to his 1999 Decree, as discussed supra, Illinois had subject-matter jurisdiction.” He does not dispute the Los Angeles Superior Court proceedings, but complains that due to his financial circumstances, he was precluded from a full and fair opportunity to be heard in Illinois.
While it is true that a sister state judgment may be set aside based on a due process violation, appellant has not shown such a violation. In Commercial Nat. Bank of Peoria v. Kermeen (1990) 225 Cal.App.3d 396, a judgment was set aside based on an egregious due process violation. A debtor borrowed money from an Illinois bank and signed a note containing a clause providing for confession of judgment by an attorney on behalf of the debtor in the event of a default. An action was filed in Illinois on the note. Pursuant to the clause in the note, an attorney appeared for the debtor, waived service of process, confessed judgment, and waived all other rights as authorized by the provision in the note. Judgment was obtained against the debtor and the bank sought enforcement in California of the judgment as a sister state judgment. After the debtor received notice of entry of the sister state judgment, he sought to vacate the judgment pursuant to section 1710.40. He alleged that he had moved from Illinois to California before entry of the judgment, he did not know and had never communicated with the attorney who appeared on his behalf, and he had not received a demand for payment or any notice of the proceedings in Illinois. (Id. at pp. 398-399.) The California judgment was vacated because the debtor had not received notice or been afforded an opportunity to be heard in the Illinois action as mandated by the due process clause. (Id. at pp. 402-403.)
The facts in the instant case are clearly distinguishable from the Commercial Nat. Bank case and do not show a due process violation. The Circuit Court of Cook County, Illinois granted a dissolution of marriage on July 15, 1999. After the dissolution, there were many proceedings and motions filed by the parties, including a motion to terminate maintenance obligation based upon cohabitation filed by appellant on February 7, 2005, a motion to strike appellant’s motion filed by respondent on March 28, 2005, and respondent’s petition to increase maintenance on April 26, 2005. As a result of post dissolution proceedings, a directed verdict was granted to respondent on October 11, 2005. This judgment was appealed by appellant. While the appeal was pending, appellant acquired work in Las Vegas, Nevada in April 2007. Appellant’s appeal was unsuccessful and the judgment was affirmed on July 19, 2007.
There was additional litigation between the parties in Illinois. On August 17, 2007, respondent filed her petition for adjudication for indirect civil contempt and petition for attorney’s fees. This petition was filed at a time while appellant was working in Las Vegas. His paperwork was filed in pro. per. after his attorney of record withdrew from the proceedings. Appellant had numerous communications with respondent’s attorney and contacted the trial court in an effort to appear telephonically. Ultimately, respondent obtained an order from the Circuit Court on February 5, 2008, including an order for attorney fees against appellant in the amount of $23,188.38. Appellant appealed this order. On August 14, 2008, appellant filed a motion to withdraw his appeal due to continued abusive tactics by the opposing counsel, Joanna Challacombe, her client, respondent, and additional issues.
Appellant contends that he was never afforded due process from the Cook County, Illinois Circuit Court or the judge assigned to the case. This denial of due process included his inability to appear by telephone for the hearings held in Chicago.
Appellant’s moving papers reveal a lengthy history of motions and filings in Cook County, Illinois, many of which were filed by appellant. The record clearly shows that appellant had an opportunity to be heard. It appears that his due process argument is based in part upon allegations of attorney malfeasance and lack of financial means to adequately present his case to the court in Illinois. He had the opportunity to be heard in both the trial court and appellate court in Illinois. While he obviously was frustrated with the outcome of his case, we find no violation of his due process rights that would require the court to vacate the sister state judgment obtained against him.
Fraud
Appellant contends that the judgment against him should not be granted full faith and credit because it was obtained by fraud. Again, we disagree.
In New York Higher Education Assistance Corp. v. Siegel (1979) 91 Cal.App.3d 684, the court held that to vacate a judgment on the ground of extrinsic fraud under section 1710.40, it is necessary that the party allege facts establishing a meritorious defense to the action in which the judgment was entered. (Id. at pp. 688-689.) In New York Higher Education Assistance Corp., a New York corporation brought an action in New York against a California defendant for the amount owed on an unpaid student loan. The defendant was properly served and filed a verified answer. (Id. at p. 686.) The plaintiff filed a motion for summary judgment, which was not opposed, and judgment was entered against the defendant. The plaintiff properly sought entry of the New York judgment in California and the judgment was entered. The defendant then moved to vacate the judgment alleging that the New York judgment was obtained by extrinsic fraud. (Id. at pp. 686-687.) He made no evidentiary showing that he had a meritorious defense. The court held that his motion therefore was properly denied. (Id. at p. 688.)
Appellant alleges fraud, but he does not provide an explanation as to what his meritorious defense would be that would have resulted in a judgment favorable to him. Absent a meritorious defense, he was not entitled to relief. (New York Higher Education Assistance Corp. v. Siegel, supra, 91 Cal.App.3d at p. 688.)
Appellant complains about his inability to appear telephonically. This does not constitute extrinsic fraud entitling him to relief from the judgment. Extrinsic fraud is caused by extrinsic circumstances which kept the party in ignorance of a proceeding, depriving the party of a fair adversary hearing. (In re Marriage of Modnick (1983) 33 Cal.3d 897, 905.) Fraud or mistake is considered intrinsic if a party has been given notice of the action, has not been prevented from participating in it, and has had the opportunity to protect himself from any fraud on his adversary’s part. (Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 27.) Here, appellant was given notice of the proceedings and he was not prevented from participating by extrinsic circumstances. And even if the inability to appear telephonically could be considered an extrinsic circumstance, he still would not be entitled to relief in the absence of a meritorious defense. (Olivera v. Grace (1942) 19 Cal.2d 570, 575; New York Higher Education Assistance Corp. v. Siegel, supra, 91 Cal.App.3d at p. 688.)
Appellant had the burden to show why he was entitled to relief. (Tsakos Shipping & Trading, S.A. v. Juniper Garden Town Homes, Ltd., supra, 12 Cal.App.4th at p. 88.) We find that he has not carried his burden and the trial court did not abuse its discretion in denying the requested relief. (Id. at pp. 88-89.)
DISPOSITION
The judgment is affirmed.
We concur: PERLUSS, P. J., WOODS, J.