Opinion
G044572 Super. Ct. No. 94V0231
10-11-2011
RONALD CONRAD,Petitioner, v. MICHELLE PRICE,Respondent.
Ronald Conrad, in pro. per., for Petitioner. No appearance for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Cheri Pham, Judge. Affirmed.
Ronald Conrad, in pro. per., for Petitioner.
No appearance for Respondent.
On August 11, 2010, Ronald Conrad applied to the family court to vacate a restraining order entered against him 16 years earlier. He alleged the order was void due to lack of proper service. The court held a hearing, considered testimony, and denied the motion. Because Conrad has provided us with only a clerk's transcript, we must treat this as an appeal "on the judgment roll." (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083). Therefore, we "'must conclusively presume that the evidence is ample to sustain the [trial court's] findings.'" (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error "appears on the face of the record." (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.830(b).) Finding no error, we affirm the trial court's order.
I
Our appellate record in this case is sparse. Conrad provided us with an incomplete clerk's transcript containing his motion, a supplemental brief, a declaration prepared by his brother, and a copy of the 1994 restraining order obtained by Michelle Rene Price ordering Conrad to stay away from her home, workplace, the Dana Point Resort, and the Lumbleau Real Estate School.
There is only one minute order in the record, prepared by Commissioner Lon Hurwitz, continuing the matter and asking Conrad to file supplemental briefing on whether the restraining order could be vacated pursuant to Code of Civil Procedure section 473, subdivision (b), and whether there is a statute of limitations for bringing a motion to vacate an order entered over 16 years ago.
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
The clerk's transcript does not contain the court's final order (as required by California Rules of Court, rule 8.122(b)(1) regardless of the designation notice). Our record contains a clerk's note stating the December 3, 2010 final order could not be located in the case file. We obtained a copy of the superior court's file and found the order being appealed from. On our own motion, we take judicial notice of the entire superior court family law file. (Evid. Code, § 452, subd. (d)(1).) Having the benefit of the entire clerk's transcript, we pieced together the procedural history of the case and, therefore, are able to resolve the issue raised on appeal.
On January 26, 1994, Commissioner Richard G. Vogl granted Price's request for a temporary restraining order (TRO) based on allegations of physical abuse and verbal harassment. On February 9, 1994, Commissioner Vogl granted Price's request for a permanent restraining order. Conrad was ordered to stay 100 yards away from Price, her residence, her workplace, the Dana Point Resort, and the Lumbleau Real Estate School. The order was set to expire on March 1, 1995.
Conrad continued to harass Price and she filed an order to show cause (OSC) and declaration for contempt. The court set the hearing for April 29, 1994. The trial court issued a bench warrant for Conrad's arrest when Conrad failed to appear.
On May 31, 1994, the district attorney filed a criminal information charging Conrad with stalking Price between February 2 and March 27 in violation of Penal Code section 646.9 (criminal case No. 94SF0257). The offense was charged as a felony rather than a misdemeanor because Conrad's actions were in violation of an existing "temporary restraining order, injunction, or any other court order in effect prohibiting" the misconduct against Price. (Pen. Code, § 646.9, subd. (b).)
Meanwhile, in the family law court, the trial judge recalled the bench warrant and appointed counsel to represent Conrad for the OSC regarding civil contempt. At the hearing in September 1994, the court granted Conrad's motion to dismiss the OSC and he was returned to the custody of the Orange County Jail.
Four years later, in June 1998, Conrad filed a writ of error coram nobis in superior court. Judge Kazuharu Makino issued an order denying the writ and notified both the family law court and the district attorney. Judge Makino stated Conrad was seeking to vacate a judgment entered in the family law court but failed to show a writ of error coram nobis was available. He explained, "Since the issue of the validity of the service was fully litigated in a Penal Code section 995 motion prior to [Conrad's] guilty plea, it does not appear that there was an error of fact. Further, any such fact would, of necessity, involve the merits of the issue being tried as that was an element of [Penal Code section 646.9, subd. (b)]. Also, the 'fact' was introduced, if not at trial, then during pre-trial proceedings."
The following month, Conrad filed and Judge Makino denied his petition for a writ of mandate. The court concluded in its order, "The issue [Conrad] seeks to raise was fully litigated in a Penal Code section 995 hearing. Further, the same issue was presented to this court by way of a petition for writ of error coram nobis which was denied on [June 5, 1998]. [¶] [Conrad] has failed to show any abuse of discretion in an earlier proceeding. Moreover, his enclosures clearly show that he did, in fact, receive service and that he was not prejudiced by any alleged shortcoming in the return after service."
On July 30, 1998, Judge Makino considered and rejected Conrad's petition for writ of habeas corpus. In the order, Judge Makino noted the issue had "been fully litigated in two trial courts and [had] been previously raised in a petition for writ of error coram nobis and two petitions for writ of mandate. The petition has failed to show that any technical error in the serving of the TRO would invalidate the criminal proceedings in case [No.] 94SF0257. [¶] No prima facie case for relief has been established. An order to show cause will issue only if [Conrad] has established a prima facie case for relief on habeas corpus. [Citation.]"
Nine years later, on April 24, 2007, this court denied Conrad's petition for a writ of mandate citing Hagan v. Superior Court (1962) 57 Cal.2d 767, 770-771 ["[A] court, in the absence of unusual or changed circumstances, . . . is justified, in its discretion, in refusing to consider repetitive applications of the same petition."]). On June 29, 2010, this court summarily denied Conrad's petition for a writ of mandate/prohibition.
The following month, Conrad took a different approach and filed a motion in family law court to "vacate [the] default order of [February 8, 1994,] as void" i.e., the permanent restraining order. Conrad sought to vacate the order under Code of Civil Procedure section 473, subdivision (d). Conrad argued he was not properly served with the TRO and the court granted a default protective order for Price. He explained this order was subsequently used "as an essential element" in a criminal case to elevate his crime from a misdemeanor to a felony. The court continued the hearing and asked Conrad to file supplemental briefing on whether the restraining order could be vacated pursuant to section 473 and if the motion to vacate a 16-year-old judgment was barred by a statute of limitations.
On October 12, 2010, Conrad filed a supplemental brief arguing a void order can be vacated at any time. He asserted the court possessed the inherent equitable power to grant relief in cases of extrinsic fraud or mistake.
On the day of the hearing, December 3, 2010, Conrad filed another supplemental brief and the supporting declaration of his brother, James Conrad (James). James stated that on February 1, 1994, Price asked if he would "serve papers" to stop Conrad from harassing her. James stated Price arrived at his office and showed him a "return of service affidavit." James claims he did not read the affidavit and Price showed him where to sign it and then she took it into her possession.
James attested he met Conrad the following day, February 2, 1994, at the Harbor House Café and explained what "[Price] had said." He left the envelope containing the TRO and other paperwork for Conrad on the restaurant table. James attested he did not serve the documents and summons upon Conrad in the manner stated on the proof of service return.
Conrad provided the court with a copy of the proof of service executed by James. It stated James personally served Conrad on February 2, 1994, at 12:45 at the Harbor House Café.
On December 3, 2010, the court held a hearing. The minute order indicated the court heard testimony from both Price and Conrad. The court first considered Price's oral request for a restraining order. The court informed Price that she would have to file new moving papers with new facts. It denied the request as it was not a matter properly before the court.
Next, the court considered Conrad's motion. The court stated it considered the brief and supplemental briefs. It stated the restraining order was older than the criminal protective order.The court denied the motion on the grounds it was untimely and the court lacked jurisdiction to consider it.
The trial court noted the restraining order was issued on March 1, 1995. This was a clerical error. The restraining order was issued in February 1994 and was scheduled to expire on March 1, 1995. This error does not affect our decision, and we point it out merely to clarify the record.
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II
"Generally, a party who has not actually been served with summons has three avenues of relief from a default judgment. [¶] First, . . . section 473.5, subdivision (a) provides: 'When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.' . . . [¶] Thus, a party can make a motion showing a lack of actual notice not caused by avoidance of service or inexcusable neglect, but such motion must be made no later than two years after entry of judgment, and the party must act with diligence upon learning of the judgment. (§ 473.5 . . . .) [Citations.]" (Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180 (Trackman).) Because Conrad's motion was filed over two years after the entry of judgment, section 473.5 does not offer Conrad an avenue for relief.
Moreover, section 473, subdivision (d), provides in pertinent part: "The court may, . . . on motion of either party after notice to the other party, set aside any void judgment or order." "Where a party moves under section 473, subdivision (d), to set aside 'a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment' provided by section 473.5, that is, the two-year outer limit. [Citations.]" (Trackman, supra, 187 Cal.App.4th at p. 180.) Consequently, Conrad cannot assert under section 473, subdivision (d), that the judgment, although facially valid, is void for lack of service.
Second, a "party can show that extrinsic fraud or mistake exists, such as a falsified proof of service, and such a motion may be made at any time, provided the party acts with diligence upon learning of the relevant facts. [Citations.]" (Trackman, supra, 187 Cal.App.4th at p. 181.) Conrad alleges extrinsic fraud occurred in his case because Price tricked his brother James and falsified the proof of service. If we assume for the sake of argument there was evidence of extrinsic fraud, we cannot ignore the evidence Conrad was aware of it in 1994 before he pled guilty to felony stalking. Specifically, our record shows the issue of the validity of service was fully litigated in Conrad's criminal action during the hearing on his Penal Code section 995 motion. Over the years Conrad has repeatedly sought review of this same issue by filing multiple writ petitions in the superior court and this appellate court. Conrad waited more than 16 years to bring a motion to vacate in the family law court. This was not diligent as a matter of law. The family law court correctly concluded the motion to vacate based on extrinsic fraud was untimely.
"The third avenue of relief is a motion to set aside the default judgment on the ground that it is facially void. (§ 473, subd. (d) ['The court may . . . set aside any void judgment'] . . . 'A judgment or order that is invalid on the face of the record is subject to collateral attack. [Citation.] It follows that it may be set aside on motion, with no limit on the time within which the motion must be made.' [Citation.] This does not hinge on evidence: A void judgment's invalidity appears on the face of the record, including the proof of service. [Citations.]" (Trackman, supra, 187 Cal.App.4th at p. 181.)
Specifically, "'A judgment . . . is . . . void on its face when the invalidity is apparent upon an inspection of the judgment-roll.'" (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1441.) The judgment roll for a default judgment is statutorily defined as "the summons, with the affidavit or proof of service; the complaint; the request for entry of default . . . and a copy of the judgment[.]" (§ 670, subd. (a).) The question of whether a judgment is void on its face is a question of law that we review de novo. (See Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 496.)
Conrad did not declare he was not actually served. He argued the judgment was void due to improper service. However, his claim fails because he does not allege the invalidity appears on the judgment roll, i.e., the face of the summons or proof of service. He relies on his brother's declaration filed 16 years after the judgment was entered. "This is evidence extrinsic to the judgment roll and thus 'is wholly inadmissible, even though it might show that jurisdiction did not in fact exist . . . ." [Citation.] It is therefore 'unavailing for any purpose' [citation] and cannot be considered here. [Citation.]" (Superior Motels, Inc. v. Rinn Motor Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1050.) Because no deficiency in service of summons appears on the face of the record, we conclude the motion was properly denied.
III
The order is affirmed. Respondent shall not recover costs on appeal because she did not make an appearance.
O'LEARY, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.