Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County, Michael J. Naughton, Judge, Super. Ct. No. 06D001893
Faranak Eskandary, in pro. per., for Appellant.
Jerry T. Morgan for Respondent.
OPINION
IKOLA, J.
In this marital dissolution proceeding between Faranak Eskandary (Wife) and Farahmarz Abolfathi (Husband), Wife appeals the trial court’s denial of her motions to set aside a judgment of dissolution and a restraining order. The court denied both motions solely because it concluded they were not filed within the time period specified in Code of Civil Procedure section 473, subdivision (b) (section 473(b)).
We reverse.
FACTS
The parties were married on August 23, 2005. Husband petitioned to dissolve the marriage approximately six months later, on March 3, 2006. On March 24, 2006, the parties executed a marital settlement agreement. On April 12, 2006, the court entered a default against Wife. A judgment of dissolution, which incorporated the parties’ marital settlement agreement, was filed on May 4, 2006.
On July 25, 2006, Husband filed a request for a domestic violence restraining order seeking to bar Wife from contacting, stalking, or harassing him. That same day, the court issued a temporary restraining order and set a hearing for August 15, 2006. The day before the hearing, Wife filed an answer denying Husband’s allegations. She was unable to attend the hearing the following day, however, because she attempted to personally serve the answer on Husband and was arrested for violating the temporary restraining order. Following the hearing, the court issued the restraining order (Restraining Order). The Restraining Order, effective for five years, prohibits Wife from contacting or harassing Husband, and requires her to stay at least 100 yards away from him.
On October 11, 2006, Wife filed a motion to set aside the judgment of dissolution pursuant to section 473(b) and Family Code section 2122 (section 2122). The same day, she also filed a motion to set aside the Restraining Order pursuant to section 473(b). Wife served Husband with both motions on October 25, 2006. The court denied the motions solely because it determined they were “filed after the 6 month [time period in section 473(b) ha[d] elapsed.” Wife timely appealed.
DISCUSSION
The Court’s Denial of Wife’s Motion to Set Aside the Judgment of Dissolution Was Erroneous
Section 473(b) enables the trial court, “upon any terms as may be just, [to] relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Where, as here, there is no attorney affidavit of fault, relief is discretionary, and an application for discretionary relief “must be made within a reasonable time, not exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Arambula v. Union Carbide Corp. (2005)128 Cal.App.4th 333, 340 (Arambula); Code Civ. Proc., § 473(b).) An application for discretionary relief under section 473(b) “is deemed to be made upon filing in court of a notice of motion and service of the notice of motion on the adverse party. [Citation.] Therefore, absent service on the adverse party, there is no ‘application’ for relief.” (Arambula, supra, 128 Cal.App.4th at p. 341.) The time limitation is jurisdictional — the court cannot grant relief under section 473(b) unless the application is made within the six-month period. (Arambula, supra, 128 Cal.App.4th at p. 340.)
Wife contends her motion was timely because it was filed within six months of the entry of judgment (on May 4, 2006). Wife argues she had six months from the date of entry of the judgment — until early November 2006 — to file and serve her motion to set aside. Wife is incorrect. In the case of a stipulated judgment, the six-month period in section 473(b) begins to run on the date judgment is entered. (See, e.g., In re Marriage of Jacobs (1982) 128 Cal.App.3d 273, 283-284.) But there is no stipulated judgment where one party is in default and neither party stipulates to the contents of the judgment. (See Cal. Rules of Court, rule 5.122(a)(1) [respondent in a marital dissolution proceeding is in default if, among other things, he or she fails to timely respond to a petition for dissolution]; Cal. Rules of Court, rule 5.116 [describing requirements for a stipulated judgment].) Here, Wife was in default because she did not enter an appearance or otherwise respond to Husband’s petition for dissolution. And neither party stipulated to the contents of the judgment as required by California Rules of Court, rule 5.116. As a result, the judgment was by default, not by stipulation.
Wife’s default was taken on April 12, 2006. As a result, she had six months from the date the default was entered — until October 12, 2006 — to make her application for relief by filing it and serving it on Husband. (Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970, superseded by statute on another point in Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 296-297 [in default cases, the six-month period within which to bring a motion for discretionary relief under section 473(b) “runs from the date of the default and not from the judgment taken thereafter”] see also Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) ¶ 16:57.1, p. 16-18 [emphasizing rationale for calculation of six-month period in default cases].)
Wife filed her motion to set aside the judgment of dissolution on October 11, 2006, one day before the expiration of the six-month period. But she did not serve the motion on Husband until October 25, 2006, after the six months expired. Because Wife’s motion was not “made” until October 25, 2006, it was untimely under section 473(b) and the court properly denied her motion for relief pursuant to that statute. (Arambula, supra, 128 Cal.App.4th at pp. 341-342 [court had no jurisdiction to grant relief under section 473(b) where motion was filed, but not served, within six-month period].)
Although the court incorrectly determined that Wife’s section 473(b) motion was untimely because it was not filed within the six-month period and denied the motion on that basis, we “review[] the action of the lower court and not the reasons given for its action.” (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 610; see also In re Marriage of Burgess (1996) 13 Cal.4th 25, 32 [“We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked”].)
Although Wife’s motion was untimely under section 473(b), the court’s order must be reversed because the court denied the motion without considering whether Wife was entitled to relief under section 2122. As noted above, Wife moved to set aside the judgment of dissolution pursuant to section 473(b) and section 2122. Section 473 and section 2122 “coexist, operating as alternative bases for relief, depending on when the application is filed.” (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 32 (Heggie); see also Fam. Code, § 2121, subd. (a).) As we explained in Heggie, a party may seek relief from a family law judgment within the six-month time limit under section 473. (Heggie, supra, 99 Cal.App.4th at p. 32.) “Alternatively, the litigant may seek relief under any of the specific grounds specified in [] section 2122. However, after the six months pass, the litigant is limited to just the grounds specified in section 2122, and still faces some time limits.” (Heggie, supra, 99 Cal.App.4th at p. 32; see also In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 87 [“section 2122 specifies ‘the exclusive grounds and time limits for an action or motion to set aside a marital dissolution judgment’. . . after the six-month deadline under [section 473(b)] has passed”], citation omitted.)
Under section 2122, a party may move to set aside a judgment of dissolution on the following grounds: (1) actual fraud; (2) perjury; (3) duress; (4) mental incapacity; (5) mistake; and (6) failure to comply with statutory disclosure requirements. (Fam. Code § 2122, subds. (a)-(f).) A motion based on fraud, perjury, or failure to comply with disclosure requirements must be brought within one year after the date on which the moving party discovered, or should have discovered, the fraud, perjury, or failure to disclose. (Fam. Code, § 2122, subds. (a), (b), (f).) A motion based on duress or mental incapacity must be brought within two years after the date of entry of judgment (Fam. Code, § 2122, subds. (c), (d)) and a motion alleging mistake must be brought within one year of the date of entry of judgment. (Fam. Code, § 2122, subd. (e).) Wife’s motion to set aside the judgment was brought pursuant to section 2122 and asserted fraud, perjury, duress, mental incapacity, and mistake. The court, however, denied the motion without determining whether Wife was entitled to relief under that statute. This was error.
The Court’s Denial of Wife’s Motion to Set Aside the Restraining Order Was Also Erroneous
As previously noted, an application for discretionary relief under section 473(b) must be made “within a reasonable time, in no case exceeding six months after the . . . order, or proceeding was taken.” The court issued the Restraining Order on August 15, 2006, leaving Wife until February 15, 2007 to move to set it aside. Because Wife filed her motion to set aside on October 11, 2006 and served it on October 25, 2006, her application was made well within the six-month period prescribed in section 473(b). Accordingly, the court’s denial of Wife’s motion to set aside the Restraining Order — solely on the ground that it was filed after the six-month time limit in section 473(b) expired — was erroneous.
DISPOSITION
The order denying Wife’s motion to set aside the judgment of dissolution is reversed and remanded with directions to determine whether Wife is entitled to relief under section 2122. The order denying Wife’s motion to set aside the Restraining Order is reversed and remanded with directions to hear and decide the motion. Wife shall recover her costs on appeal.
WE CONCUR: SILLS, P. J., ARONSON, J.