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Cinquanta v. Radys

California Court of Appeals, Second District, Sixth Division
Feb 1, 2011
2d Civil B223072 (Cal. Ct. App. Feb. 1, 2011)

Opinion

NOT TO BE PUBLISHED

Superior Court County No. SC039660 of Ventura Harry Walsh, Judge, Charles McGrath, Judge

Law Offices of Kenneth E. Chyten and Kenneth E. Chyten, for Defendants and Appellants.

Mark A. Hover, for Plaintiff and Respondent.


COFFEE, J.

Toni Radys and Michael Carroll appeal from an order setting aside judgment in their favor and from a subsequent judgment entered against them in this elder abuse action. Appellants' principal contention is that the trial court erred when it set aside the first judgment because perjury is intrinsic fraud and will not support a collateral attack on the judgment. We agree and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Gertrude Cinquanta gave power of attorney to her daughter, Toni Radys, in 2001 after Cinquanta's husband died. About three years later, Cinquanta brought this action against Radys and her husband, Michael Carroll. Cinquanta asserted causes of action that included financial elder abuse, fraud, breach of fiduciary duty and quiet title. She alleged that Radys used a position of trust to add herself to the title to Cinquanta's house, to refinance Cinquanta's house, to purchase a house for herself using Cinquanta's credit, and to charge appliances for herself using Cinquanta's Sears credit card. She alleged that Radys borrowed $8,000 from Cinquanta for a down payment on Radys' own house, financed the rest using Cinquanta's credit, and eventually removed Cinquanta from title to Radys' house but kept Cinquanta on the mortgage.

The parties waived jury and the case was tried by the court in May 2005. The court entered judgment in favor of Radys and Carroll on all causes of action and awarded $776 in costs against Cinquanta. The trial court found no evidence of misconduct by Carroll or Radys. It credited Radys' testimony over Cinquanta's. It found that Radys' conduct was consistent with Cinquanta's interests and wishes. It found that Radys put herself on title to her mother's house to facilitate renting it in the event her mother became incapacitated. It found the transactions concerning Radys' house to be consistent with a mother's wish to help her daughter buy a home. It found uncontradicted Radys' testimony that she had repaid all but $3,000 of the $8,000 down payment. The court found no evidence that Radys had ever taken any of Cinquanta's money for her own benefit.

Notice of entry of judgment was mailed to Cinquanta's counsel in November 2005. She served notice of appeal immediately, but the appeal was dismissed when she abandoned it. Radys remained on title to Cinquanta's house as joint tenant and Cinquanta remained as a responsible party on Radys' mortgage.

Around the same time that judgment was entered, Radys tried to charge Cinquanta to live in her own house, and then tried to evict her. Radys filed a partition action in which she sought sale of Cinquanta's house and half the proceeds. Cinquanta turned to her other daughter, Karen Sweet, for help and retained new counsel. Sweet showed Cinquanta a credit report that had been obtained for the first trial. Cinquanta did not recognize one of the credit cards. Sweet got copies of all of Cinquanta's account records. She found that Radys had obtained and used a credit card in Cinquanta's name without Cinquanta's knowledge or permission. She found that Radys bought a life insurance policy on Cinquanta's life, paid for it from Cinquanta's account, and made herself the sole beneficiary. She also found that Radys made substantial ATM withdrawals from Cinquanta's accounts. Sweet gave the information to the Ventura County Sheriff's Department and to Cinquanta's new attorney. The sheriff's department began a criminal investigation.

On October 16, 2007, just as trial on Radys' partition action was about to begin, Cinquanta moved to set aside the civil judgment in this case based on extrinsic fraud. Almost two years had passed since entry of judgment. Cinquanta's motion informed the court of the ongoing criminal investigation and offered declarations of Cinquanta, her new attorney, and Sweet to prove that Radys had perjured herself in the first trial when she said she had never taken money from Cinquanta for her own use and when she said that she was only on title to Cinquanta's house in order to help her. Cinquanta also declared that Radys had taken all of Cinquanta's financial papers before the first trial and had not returned them.

Cinquanta also moved for new trial on the same ground, but tacitly concedes on appeal that the motion for new trial was time-barred because it was brought more than 15 days after notice of entry of judgment. (Code Civ. Proc., § 659.)

About 10 days after Cinquanta moved to set aside the judgment, the Ventura County District Attorney's office filed a criminal complaint against Radys. It charged her with 15 felony counts committed against Cinquanta or in connection with Cinquanta's financial affairs between 2001 and 2007.

In January 2008, while the motion to set aside was under submission, Radys pled guilty to five felony counts: theft from an elder adult with a loss over $150,000 for adding herself to the title to Cinquanta's house (Pen. Code, §§ 368, subd. (e), 12022.6); insurance fraud for forging Cinquanta's name and making false statements on the life insurance policy application (§ 550, subd. (b)(3)); grand theft by embezzlement for the ATM withdrawals (§ 487, subd. (a)); forgery against an elder adult by a caretaker for taking out a credit card in Cinquanta's name (§ 368, subd. (e)); and mental abuse of an elder adult for making abusive and threatening statements to Cinquanta (§ 368, subd. (b)(1)). The criminal court suspended imposition of sentence, placed Radys on probation, and ordered her to remove herself from title to Cinquanta's house, to remove Cinquanta's name from the mortgage on Radys' house, and to pay Cinquanta about $75,000 in victim restitution, mainly for the ATM withdrawals.

In February 2008, the trial court granted Cinquanta's motion to set aside judgment in this case as to Radys, based on its finding that Radys procured the judgment by giving false testimony. The ordered stated, "The court has read and reviewed the felony disposition statement executed by defendant Toni Radys in the case of People v. Toni Radys... and is persuaded that the judgment in her favor in the pending civil case was procured by testimony on the part of Ms. Radys which was false." The order was silent as to the judgment against Carroll.

"The judgment entered on November 16, 2005, in favor of defendant Toni Radys, [aka] Antionette Radys-Carroll and Toni Radys as trustee for the Radys-Carroll Revocable Trust is ordered vacated and set aside."

In November 2009, the trial court conducted a second bench trial on Cinquanta's claims against both Radys and Carroll. Cinquanta offered her own testimony, the testimony of Sweet, the testimony of the deputy district attorney that prosecuted Radys, and documentary evidence that had been developed in the criminal case including the felony disposition statement. Radys and Carroll were represented by counsel, but did not appear at trial and offered no evidence in their defense. Cinquanta conceded that the victim restitution order covered all of her damages, except $8,000 that she leant to Radys for a down payment, her general damages, and punitive damages.

The court entered judgment for Cinquanta, awarding her $8,000 in compensatory damages and $250,000 in general damages. It quieted title to Cinquanta's house in her name alone, set aside the forged quitclaim deed that removed Cinquanta from title to Radys' house, set aside all subsequent transfers of Radys' house, and ordered a partition sale of Radys' house with sale proceeds to be divided equally between she and Cinquanta. This appeal followed.

DISCUSSION

Appellants contend that the trial court erred when it set aside the first judgment because, even if Radys' testimony was false, it did not constitute extrinsic fraud and a judgment may not be set aside for intrinsic fraud more than six months after judgment is rendered. We agree.

We do not reach appellants' remaining contentions that the doctrine of res judicata barred relitigation of the claims in a second trial, that the second trial against Michael was also barred because the first judgment was never set aside as to Michael, and that there was not sufficient evidence presented in the second trial to support judgment against Michael.

A statutory motion to set aside a civil judgment based on fraud must be brought within six months after judgment is rendered. (§ 473, subd. (b).) But if the fraud is "extrinsic, " equitable relief may be had at any time irrespective of the six-month limitation. (Beresh v. Sovereign Life Ins. Co. (1979) 92 Cal.App.3d 547, 552.) If the fraud is "intrinsic" equitable relief is unavailable and the six-month limitation applies. (Ibid.; Peterson v. Peterson (1955) 135 Cal.App.2d 812, 816 [false testimony].)

"Extrinsic fraud" is fraud that is collateral to the issues in the proceeding and that prevents a party from having their day in court. (Pico v. Cohn (1891)91 Cal. 129, 133-134 [bribery of a trial witness was not extrinsic fraud].) Extrinsic fraud includes such things as failure to give notice of the action to the other party, concealment of an asset to preclude litigation of its ownership, and convincing the other party not to obtain counsel because the matter will not proceed. (City and County of San Francisco v. Cartagena (1996) 35 Cal.App.4th 1061, 1067 [fraudulent blood test was not extrinsic to a paternity action because it went to the merits of the prior proceeding and did not prevent a party from having their day in court].) In every case of extrinsic fraud, "the unsuccessful party is really prevented, by the fraudulent contrivance of his adversary, from having a trial." (Pico, at p. 134.)

"Intrinsic fraud, " on the other hand, is any fraud committed in the course of the proceedings. Perjured testimony is a "classic example of intrinsic fraud." (Buesa v. City of Los Angeles (2009) 177 Cal.App.4th 1537, 1546.) "After the time for seeking a new trial has expired and any appeals have been exhausted, a final judgment may not be directly attacked and set aside on the ground that evidence has been suppressed, concealed, or falsified; in the language of the cases, such fraud is 'intrinsic' rather than 'extrinsic.'" (Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 10 [no separate tort for intentional spoliation of evidence].) The rule protects the finality of judgments, even at the risk of occasional miscarriage of justice. (Pico v. Cohn, supra, 91 Cal. at pp. 133-134.) Where the fraud is intrinsic, the trial is the litigant's only opportunity to make the truth appear. (Id. at p. 134.) "If... he fails, being overborne by perjured testimony, and if he likewise fails to show the injustice that has been done him on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy." (Ibid.)

Radys' false testimony was intrinsic because it did not prevent Cinquanta from having her day in court and it went to the merits of the proceeding. The introduction of perjured testimony or false documents in a case that was actually litigated is intrinsic rather than extrinsic fraud. (Kachig v. Boothe (1971) 22 Cal.App.3d 626, 634.) Cinquanta's motion to set aside the judgment was supported only by evidence of intrinsic fraud, although it tried to characterize the fraud as "extrinsic." She offered evidence that Radys falsely testified about the reason she added herself to the title of her mother's house, and that Radys falsely testified that she never used her access to her mother's resources to take money for herself. Cinquanta offered information from her own financial records, and evidence of Radys' post-judgment conduct, to establish that Radys' trial testimony was false. The court's only stated reason for setting aside the judgment was perjury.

The motion asserted that Radys committed extrinsic fraud when she "concealed information from Cinquanta] and gave false information to [Cinquanta] causing extrinsic factors which prevented [Cinquanta] from presenting her case to the court at time of trial."

Even if Cinquanta had been unable to uncover the false testimony because Radys took her financial records, the false testimony could not have supported the court's order setting aside the judgment. Intrinsic fraud may not be used to equitably attack the judgment, "even where the party was unaware of the fraud at the time and did not have a chance to raise it at trial." (Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th 810, 828.)

The order setting aside the judgment must be reversed because it was based on intrinsic fraud and was filed more than six months after judgment was rendered. (§ 473, subd. (b).) The court had no authority to excuse Cinquanta's noncompliance with the six-month limit. (Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42.) The judgment could not be set aside on equitable grounds because the fraud was not extrinsic.

DISPOSITION

The order entered on February 5, 2008, granting Cinquanta's motion to set aside the original judgment is reversed. The subsequent judgment entered on January 14, 2010, is vacated. The original judgment entered on November 16, 2005, in favor or appellants is reinstated. Each party shall bear their own costs on appeal.

We concur: GILBERT, P.J., PERREN, J.


Summaries of

Cinquanta v. Radys

California Court of Appeals, Second District, Sixth Division
Feb 1, 2011
2d Civil B223072 (Cal. Ct. App. Feb. 1, 2011)
Case details for

Cinquanta v. Radys

Case Details

Full title:GERTRUDE CINQUANTA, Plaintiff and Respondent, v. TONI RADYS et al.…

Court:California Court of Appeals, Second District, Sixth Division

Date published: Feb 1, 2011

Citations

2d Civil B223072 (Cal. Ct. App. Feb. 1, 2011)