Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BD222401, Amy M. Pellman, Temporary Judge (pursuant to Cal. Const., art. VI, § 21).
Lorie Ann Hearn, in pro. per.; Law Offices of Kenneth Lane Haddix and Kenneth Lance Haddix for Petitioner and Appellant.
Honey Kessler Amado and Ronald P. Kaplan for Defendant and Respondent.
MOSK, J.
INTRODUCTION
Ten years after a judgment of dissolution was entered ending the marriage of petitioner and appellant Lorie Ann Hearn (Lorie) and defendant and respondent Mark A. Hearn (Mark), Lorie filed a motion to set aside the judgment on the ground that Mark obtained the judgment fraudulently by forging her signature on the judgment. The trial court denied the motion, finding that it was not brought within one year of the date Lorie knew or should have known of the fraud as required by Family Code section 2122, subdivision (a). On appeal, Lorie challenges the trial court’s finding that her motion was not timely. We affirm.
For clarity, we will refer to the parties by their first names.
BACKGROUND
On September 19, 1995, Lorie filed a petition for dissolution of marriage. Divorce Resource, Inc., a mediation and legal document preparation organization, prepared the petition for Lorie. The petition lists the address for Divorce Resource, Inc. as the mailing address for Lorie. In support of his opposition to Lorie’s motion to set aside the judgment, Mark submitted the declaration of Deanie Kramer, founder and president of Divorce Resource, Inc. Kramer declares that she assisted Lorie with her divorce. Kramer acknowledges that she can not specifically remember Lorie, but recognized her own signature on Lorie’s intake form.
We grant Mark’s motion to augment the record to include Mark’s Responsive Declaration to Order to Show Cause or Notice of Motion (his opposition to Lorie’s motion to set aside the judgment). We deny the remainder of Mark’s motion to augment.
In her declaration, Kramer explains Divorce Resource, Inc.’s usual and customary business practices in assisting parties to divorce. According to Kramer, at the initial meeting with a client, Divorce Resource, Inc. typically prepares a summons and a petition for dissolution that are filed with the court. Upon receiving conformed copies from the court, Divorce Resource, Inc. sends copies of the conformed documents to the petitioner and copies to the respondent along with a notice and acknowledgment of receipt. If the respondent does not file a response within about 30 days after signing the notice and acknowledgement of receipt, Divorce Resource, Inc. prepares a marital settlement agreement dividing the parties’ marital property.
Once the parties agree on a marital settlement agreement, Divorce Resource, Inc. prepares a request to enter default and the final documents, including the judgment, to complete the divorce. The parties then either come to Divorce Resource, Inc.’s office to sign and notarize the marital settlement agreement, judgment, and other final documents, or the documents are mailed to the parties for their signatures and to be notarized elsewhere. It is Divorce Resource, Inc.’s practice to have a petitioner sign the marital settlement agreement first before having the respondent sign it.
When Divorce Resource, Inc. receives all of the final papers, it files the papers in court. After signing and entering the judgment, the court sends the parties a copy of the judgment and the notice of entry of judgment. As part of its usual business practices, Divorce Resource, Inc. also sends a conformed copy of the judgment to the parties.
On January 2, 1996, Divorce Resource, Inc. filed a request for entry of default on Lorie’s behalf. On February 20, 1996, the trial court entered a default judgment on Lorie’s petition for dissolution of marriage. Among other things, the judgment provides that two properties, a residence at 175 East Mountain View Street (Mountain View property) in Long Beach and an apartment building at 5470 Lime Avenue in Long Beach, “shall be held as they are currently held,” Mark “shall pay all expenses of the two properties,” and, upon sale of the properties, Mark “shall have the proceeds remaining after the costs associated with the sale of said properties have been paid . . . .” The judgment provides that the parties are to “execute and deliver any documents, make all endorsements and do all acts necessary or convenient to carry out the terms” of the judgment.
In her declaration, Kramer states, “I have no doubt that this Judgment was promptly forwarded to Lorie Ann Hearn upon our receipt of it. The Judgment was filed on February 20, 1996. We would have forwarded the court stamped copy of it to her promptly thereafter.”
In 2003, Mark desired to refinance the Mountain View property and sought Lorie’s cooperation. Lorie’s cooperation was needed as she apparently remained on title, as provided in the judgment. In his declaration in support of his opposition to Lorie’s motion to set aside the judgment, Mark states that he offered Lorie “a potential $10,000 to cooperate.” During the process of refinancing, Lorie told Mark that she wanted half of the loan proceeds and that she wanted her attorney, Ruth Rose, to review the loan. Lorie had hired Rose to represent her in connection with the refinancing of the Mountain View property.
According to Mark, “[t]o show them what the legal documents stated, [he] faxed a complete copy of the Judgment to the attorney.” Attached to Mark’s declaration are 11 pages of documents Mark declares he faxed to Rose. The 11-page fax includes a one-page coversheet dated October 15, 2003, one-page notice of entry of judgment, five-page judgment, two-page declaration for default or uncontested dissolution, and two one-page declarations regarding service of final declaration of disclosure and income and expense declaration. In his declaration, Mark states that Lorie and Rose ignored the judgment. Lorie continued to demand half of the proceeds of the loan and Mark felt that Rose was extorting money from him. Mark said he refused to be “extorted” and cancelled the escrow.
In 2005, Mark decided to sell the Mountain View property and hired attorney Laurel Brauer to assist him. By letter dated August 23, 2005, Brauer sent a letter to Lorie asking her to sign the listing agreement for the property. The letter enclosed a copy of the judgment and advised Lorie that there were no “money allocations to be determined” between her and Mark and that she was obligated to sign off on any and all documents necessary for Mark to sell the property. The letter was sent to an apartment that Mark declared Lorie had shared with her father since her divorce from Mark. In her declaration in support of her motion to set aside the judgment, Lorie states that the letter from Brauer was sent to her father’s address in Los Angeles, and she did not receive it until September 2005 when her father forwarded it to her in Minneapolis where she was on business. According to Mark, Lorie would not cooperate in the sale of the Mountain View property.
On September 6, 2006, Lorie filed a motion to set aside the judgment of dissolution on the ground of fraud. Lorie claimed that Mark forged her signature on the marital settlement agreement that was part of the judgment. Mark filed a motion to enforce the judgment. The trial court heard both motions on February 28, 2007, and, by order dated April 11, 2007, the trial court denied Lorie’s motion to set aside the judgment of dissolution and granted Mark’s motion to enforce the judgment.
At the hearing on her motion to set aside the judgment, Lorie argued that the Los Angeles address to which Brauer sent the copy of the judgment and marital settlement agreement in 2006 was her father’s mailing address in Los Angeles. Lorie’s father lived in Las Vegas at the time, and Lorie did not live with him. By the time the letter was forwarded to Lorie, it was mid-September. That was the first time Lorie saw the allegedly forged signature.
The trial court having indicated its tentative decision to deny Lorie’s motion to set aside the judgment as untimely, Mark’s attorney asked the trial court for an indication of the court’s position on when Lorie received notice of the alleged fraud. The trial court responded, “Based on the evidence and the papers in front of the court, the court finds that the petitioner could have had notice on three different occasions. [¶] First of all, she was on notice from Divorce Resources [sic]. The court put the most weight on 2003 when petitioner had counsel for a period of time, and respondent’s counsel sent petitioner’s counsel a copy of the judgment. Certainly, also in 2005 when petitioner sent the letter from the Brauer firm, that was August 23rd, ’05. So either – all of those three occasions, petitioner had notice. [¶] The court finds in 2003, certainly when respondent’s counsel sent petitioner’s counsel a copy of the judgment, that that was most likely – that that was certainly the most credible. And the court puts the most weight on that. So that would be back in 2003.”
Based on Mark’s declaration, it is clear that the trial court misspoke when it stated that Mark’s counsel sent a copy of the judgment to Lorie’s counsel in 2003. Mark stated in his declaration that he sent the copy of the judgment to attorney Rose in 2003. The trial court’s misstatement is insignificant to the issues on appeal.
After further argument, the trial court ruled, “Based on what the court has before it today, the court finds that the motion to set aside is untimely. And the court bases its finding on that the judgment was entered on 2-20-96, and that petitioner knew or should have known that the judgment was entered on one – at least one of three occasions. [¶] First, she should have received notice from Divorce Resources [sic] as respondent received his notice. And if she did move and did not advise Divorce Resources [sic] of her move, she would still – she should have known because that was her burden to advise Divorce Resources [sic] of her change of address. [¶] Second one, in 2005 – I’m sorry. Also in 2003 – so the first one was in 1996. And the second, in 2003, when respondent provided judgment copies to petitioner and then counsel. [¶] And/or the third when petitioner sent a letter from the Brauer firm on 8-23 with the judgment attached.”
The trial court again misspoke when it stated that Mark provided a copy of the judgment to Lorie and to her attorney. Mark’s declaration makes clear that he provided a copy of the judgment solely to Lorie’s attorney. Because Mark never argued that he directly provided a copy of the judgment to Lorie and because the context of the trial court’s recitation of this nonfact makes clear that the trial court simply misspoke, the trial court’s misstatement is of no consequence.
DISCUSSION
Lorie contends that the trial court erred when it found that she knew or should have known of any alleged fraud in connection with the judgment more than one year prior to filing her motion to vacate the judgment. We disagree. As we discuss below, substantial evidence supports the trial court’s findings that Lorie knew or should have known of the judgment and alleged fraud in either early 1996, when Divorce Resource, Inc. sent her a copy of the judgment shortly after the trial court entered it on February 20, 1996, or in late 2003, when Mark faxed a copy of the judgment to Lorie’s attorney on October 15, 2003.
Because we hold that substantial evidence supports the trial court’s finding that Lorie knew or should have known of the judgment and alleged fraud not later than October 2003, we need not decide if Lorie also knew or should have known of the judgment and alleged fraud in 2005 when Brauer sent a copy of the judgment to Lorie.
A. Standard of Review
“Generally, appellate courts independently review questions of law and apply the substantial evidence standard to a superior court’s findings of fact.” (SFPP v. Burlington Northern & Santa Fe Ry. Co. (2004) 121 Cal.App.4th 452, 461-462.) Resolution of a statute of limitations issue normally is a question of fact. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112.) When the facts relevant to the application of a statute of limitations are not in dispute, however, the application of the statute of limitations may be decided as a question of law. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611-612.)
Under the substantial evidence standard of review “‘“the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.’ [Citation.]” (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053, superseded by statute on other grounds as stated in Eller Media Co. v. City of Los Angeles (2001) 87 Cal.App.4th 1217, 1219-1220, fn. 3.) “We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The burden is on the party or parties challenging the findings and orders of the trial court to show there is no evidence of a substantial nature to support the finding or order.” (In re H.G. (2006) 146 Cal.App.4th 1, 13.)
The trial court’s findings about whether Lorie knew or should have known about Mark’s alleged fraud in forging Lorie’s signature on the judgment of dissolution within the one-year limitations period in Family Code section 2122, subdivision (a) turned on disputed facts. Thus, we review the trial court’s findings for substantial evidence.
B. Application of Relevant Legal Principles
Family Code section 2122, subdivision (a) 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.”
1. Substantial Evidence Supports the Trial Court’s Finding That Lorie Knew or Should Have Known of Any Alleged Fraud in 1996
In ruling that Lorie’s motion to set aside the judgment was untimely, the trial court found that Lorie knew or should have known that the judgment had been entered in 1996 when Divorce Resource, Inc. sent her a copy of the judgment. Substantial evidence supports this finding.
In her declaration, Kramer, Divorce Resource, Inc.’s president and the person who assisted Lorie in her divorce, states that it is Divorce Resource, Inc.’s usual business practice to send a conformed copy of a judgment to its client after the court enters the judgment. Kramer states that she reviewed Divorce Resource, Inc.’s file for Lorie’s divorce and that it contains the notice of entry of judgment and judgment. Kramer further states, “I have no doubt that this Judgment was promptly forwarded to Lorie Ann Hearn upon our receipt of it. The Judgment was filed on February 20, 2006. We would have forwarded the court stamped copy of it to her promptly thereafter.”
Lorie contends that Kramer’s reliance on Divorce Resource, Inc.’s usual business practice is not sufficient proof to establish that Divorce Resource, Inc. sent her a copy of the notice of entry of judgment and judgment. Under Evidence Code section 1105, which provides that “[a]ny otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom,” Kramer’s declaration concerning Divorce Resource, Inc.’s usual business practice is sufficient evidence to support the trial court’s finding.
Lorie argues that we should disregard Kramer’s statements because Mark did not submit documentary proof or evidence showing that copies of the notice of entry of judgment and judgment were sent to her, even though Divorce Resource, Inc. had a copy of a letter showing that it had sent her copies of the summons and petition. Lorie considers it “highly suspect” that Divorce Resource, Inc. could present proof that it had sent her copies of the summons and petition, but could not submit such proof concerning the notice of entry of judgment and judgment.
In effect, Lorie asks us to reweigh the evidence and draw a conclusion different from that drawn by the trial court. That is not our role. Under the substantial evidence standard of review, we do not reweigh evidence or resolve evidentiary conflicts. (Bickel v. City of Piedmont, supra, 16 Cal.4th at p. 1053; In re H.G., supra, 146 Cal.App.4th at p. 13.) Instead, under the applicable law, we view the evidence in the light most favorable to Mark, the prevailing party, and give that evidence the benefit of every reasonable inference. (Bickel v. City of Piedmont, supra, 16 Cal.4th at p. 1053.)
Lorie also notes that in her declaration, she stated that she moved to a new address after the “dissolution papers” were filed, that she notified Divorce Resource, Inc. of her new address, and that she did not receive any mail from Divorce Resource, Inc. including the marital settlement agreement of the judgment. The evidence in Lorie’s declaration does not override any of the trial court’s findings, as it was not before the trial court when it ruled on Lorie’s motion to set aside the verdict. Instead, it was part of Lorie’s March 12, 2007 motion to reconsider the trial court’s denial of Lorie’s September 6, 2006 motion to set aside the judgment. The trial court denied Lorie’s motion to reconsider without prejudice, apparently on the ground that the motion to reconsider was filed prematurely. There is no indication in the record that Lorie re-filed her motion for reconsideration, and Lorie makes no claims with respect to the trial court’s denial of that motion in her appeal.
In the declaration from Lorie that was attached to Lorie’s motion to set aside the judgment and that was properly before the trial court, she states that she received the initial divorce papers from Divorce Resource, Inc. on or about September 22, 1995, that she had signed a lease for a new apartment on September 16, 1995, and that she was not served with any papers after she filed the default judgment on January 22, 1996 (presumably the request to enter default of the same date). In that declaration, Lorie does not state whether or not she informed Divorce Resource, Inc. of her address change.
Moreover, even if Lorie’s declaration properly was before the trial court, Lorie’s statements concerning her allegedly correct address are not dispositive because Kramer’s declaration only addresses Divorce Resource, Inc.’s usual business practice; Kramer does not identify the specific address to which Divorce Resource, Inc. sent the judgment. Moreover, a trier of fact reasonably could infer that if Lorie provided Divorce Resource, Inc. with her new address, Divorce Resource, Inc., as part of its usual business practices, would have sent the judgment to that address. (Bickel v. City of Piedmont, supra, 16 Cal.4th at p. 1053.)
2. Substantial Evidence Supports the Trial Court’s Finding That Lorie Knew or Should Have Known of Any Alleged Fraud in October 2003
In ruling that Lorie had not timely filed her motion to set aside the judgment, the trial court also found that Lorie knew or should have known that the judgment had been entered in 1996 when Mark sent a copy of the judgment to Lorie’s attorney, Rose, in October 2003. Substantial evidence supports this finding.
In his declaration, Mark states that he faxed a copy of the judgment to Rose when he was attempting to obtain Lorie’s cooperation in refinancing the Mountain View property in October 2003. The fax cover sheet is dated October 15, 2003, nearly three years prior to the filing of Lorie’s motion to set aside the judgment. Mark’s declaration is substantial evidence that Lorie knew or should have known of the judgment and alleged fraud not later than October 2003.
Lorie contends that Mark’s declaration is not conclusive evidence that she received notice of the judgment through Rose because Rose never received Mark’s fax. In support of this contention, Lorie cites a declaration from Rose in which Rose states that she did not receive a fax from Mark in October 2003, and that if she had, she would have told Lorie about it. Rose declares that she was hired to review mortgage loan documents and to negotiate with an escrow company and not to “deal” with Mark. The evidence in Rose’s declaration does not require questioning any of the trial court’s findings because the declaration was submitted in support of Lorie’s subsequent motion to reconsider the trial court’s order denying Lorie’s motion to set aside the judgment and, therefore, was not before the trial court when it considered Lorie’s motion to set aside the judgment. As discussed above, we do not consider the information supplied with the motion to reconsider.
Lorie next contends that even if Mark sent Rose a fax on October 15, 2003, the document faxed to Rose could not have been the five-page judgment because the cover sheet states that 11 pages were faxed. Moreover, Lorie contends, the fax cover sheet did not describe the documents Mark sent. These contentions are unavailing. Mark attached to his declaration the documents that he faxed to Rose on October 15, 2003. As noted above, the 11-page fax included the one-page coversheet, one-page notice of entry of judgment, five-page judgment, two-page declaration for default or uncontested dissolution, and two one-page declarations regarding service of final declaration of disclosure and income and expense declaration.
Lorie also contends that Mark’s fax cover sheet provides an incorrect fax number for Rose, and the banner on the top of Mark’s fax shows a date of January 16, 2007. Lorie failed to raise these alleged factual discrepancies in the trial court. The date could be explained that the copy had been faxed again. Even if Lorie had raised them in the trial court, they present the type of evidentiary conflicts that are for the trial court, as fact finder, to resolve, not an appellate court. (In re H.G., supra, 146 Cal.App.4th at p. 13.)
DISPOSITION
The judgment is affirmed. Costs are awarded to Mark.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.