Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Robert B. Axel, Temporary Judge, Super. Ct. No. VD057694
Richard H. Bitters for Appellant.
Duran & Flanagan and Manuel Duran for Respondent.
EPSTEIN, P. J.
Alfonso Angulo appeals the denial of his motion to set aside provisions of an uncontested judgment dissolving his marriage to respondent Jalime Angulo. Alfonso claims Jalime tricked him into signing a document awarding her sole possession of certain assets and did not serve him with notice of the hearing in which that document was made binding. Since there is substantial evidence to support the trial court’s implicit resolution of the factual disputes in this case, we affirm the order.
Because the parties share the same surname, we refer to them by their first names to make our opinion easier to understand. (In re Marriage of Rossi (2001) 90 Cal.App.4th 34, 36, fn. 1.)
FACTUAL AND PROCEDURAL SUMMARY
Alfonso and Jalime married in July 1996 and separated in August 2004. Sometime in January 2005, Jalime hired an attorney, Leticia Aguirre, to represent her in the dissolution of her marriage. Alfonso did not retain counsel. On January 21, 2005, Alfonso and Jalime met in Aguirre’s office and signed a stipulated judgment (the agreement). The agreement specified, among other things, that Jalime would receive sole ownership of the family residence. Alfonso and Jalime also signed an “APPEARANCE, STIPULATIONS, AND WAIVERS” form (the waiver) in which the parties agreed to waive their right to a trial and to submit the agreement for court approval.
Jalime filed a petition for dissolution of marriage on March 1, 2005. On May 10, 2005, she submitted the agreement and waiver to the court. Over the next several months, the agreement was rejected for certain procedural defects. On December 20, 2005, a dissolution hearing was set, but later taken off calendar. On April 17, 2006, another hearing was set for May 16, 2006.
Jalime appeared at the May 16, 2006 hearing, but Alfonso did not. The court entered judgment dissolving the marriage, incorporating the agreement into the judgment.
On November 16, 2006, Alfonso moved to set aside the provisions of the May 16, 2006 judgment dealing with the parties’ property rights. Alfonso claimed that he spoke only Spanish and that Jalime took advantage of that fact by presenting the written agreement to him in English while telling him it was only an agreement allowing him to see their children. He also claimed he was unaware of the May 16, 2006 hearing because he had not received notice of the hearing.
In opposition to the motion, Jalime stated the agreement reflected a prior agreement between her and Alfonso and that Aguirre’s office had drafted the document at their joint request. She claimed that in October 2004, Alfonso agreed to give her their residence to compensate her for his abuse. She also claimed the paralegal in attorney Aguirre’s office who prepared the document read it orally to Alfonso in Spanish before he signed it. She stated she had given Alfonso proper notice of the May 16 hearing by mail.
On December 11, 2006, the court heard argument on the motion. The court denied Alfonso’s motion to set aside the judgment. This is a timely appeal from the order denying the motion.
DISCUSSION
Alfonso contends the judgment should have been set aside for fraud, duress, mistake, perjury and failure to comply with disclosure requirements under Family Code sections 2121 and 2122, subdivisions (a), (b), (c), (e) and (f). We review for abuse of discretion the denial of a motion brought under section 2122 to set aside a judgment. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.) We will reverse only if there is a clear abuse that results in a manifest miscarriage of justice. (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.) Alfonso bears the burden of showing abuse of discretion, and does not do so if the facts simply allow for a difference of opinion. (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118.)
All further statutory references are to the Family Code.
Although a trial court usually has no duty to prepare a statement of decision when it rules on a motion, section 2127 provides an exception for certain motions under the Family Code where the court has resolved controverted factual evidence. Because Alfonso did not request a statement of decision, we imply all factual findings necessary to support the judgment if the record shows substantial evidence to support them. (In re Marriage of Condon (1998) 62 Cal.App.4th 533, 549, fn. 11.)
Section 2127 states: “As to actions or motions filed under this chapter, if a timely request is made, the court shall render a statement of decision where the court has resolved controverted factual evidence.” Sections 2127, 2121 and 2122 are all part of Family Code division 6, part 1, chapter 10.
In his motion to set aside the judgment, Alfonso claimed Jalime committed fraud by telling him he was signing child support documents when he was really signing away his property rights. He also claimed the judgment was based on a mistake because he did not know what he was signing. Part of the agreement was that Alfonso and Jalime waived the final declaration of disclosure, and one of the documents Alfonso signed was a form waiver of the final declaration of disclosure. Thus, he claimed she committed perjury and failed to comply with disclosure requirements by submitting the waiver of the final declaration of disclosure to the court.
All of these claims are different ways of saying the judgment was based on Jalime’s fraud. Because Alfonso’s mistake, perjury and disclosure theories are all premised on the same facts as his fraud theory, they are subsumed into the analysis of that theory. “‘“[T]he subject matter of an action and issues involved are determined from the facts alleged rather than from the title of the pleadings.”’” (Lovejoy v. AT&T Corp. (2001) 92 Cal.App.4th 85, 98.)
Section 2121, subdivision (a) authorizes courts to relieve spouses from judgments adjudicating the division of property in marriage dissolution proceedings on the grounds set forth in section 2122. Section 2122, subdivision (a) provides grounds for relief for “[a]ctual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding.”
Alfonso submitted his own declaration in support of his motion. He stated he did not speak or understand English. He said Jalime told him the agreement was only routine paperwork allowing him to see their children, and he trusted her because the agreement was in English. It is undisputed that Alfonso was not represented by counsel on the day he signed the agreement.
In her opposition to the motion, Jalime claimed Alfonso actually knew he was disposing of his right to the residence when he signed the agreement. She submitted her own declaration as well as those of attorney Aguirre and Aguirre’s paralegal, Maria Garcia. Jalime declared Alfonso wanted to give her the family residence as compensation for earlier abuse. She stated she and Alfonso privately agreed on settlement terms and asked Aguirre to draft the agreement to reflect those terms. Garcia declared she read the agreement out loud in Spanish for Alfonso, regularly paused to ask him if he understood, and again asked him if he understood before he signed. Aguirre declared she informed Alfonso of his right to counsel and a trial, and he acknowledged and waived those rights. Jalime also submitted a quitclaim deed purporting to transfer the disputed residence to her, signed by Alfonso and notarized on October 29, 2004.
The declarations conflicted sharply over whether Alfonso understood the nature of the agreement, but the declarations of Jalime, attorney Aguirre, and Garcia, along with the quitclaim deed, support the conclusion that Alfonso was aware of the content of the agreement when he signed it.
In his motion to set aside the judgment, Alfonso also claimed Jalime never properly served him with notice of the May 16, 2006 hearing at which the trial court approved the agreement. In her declaration, Garcia said she researched Alfonso’s whereabouts on April 17, 2006 and discovered that he was jailed in Los Angeles. She declared she mailed the notice to Alfonso at the jail on the same day, and that the notice was never returned to her office. Jalime attached a copy of the notice and a proof of service of the notice by mail. This is substantial evidence that Alfonso was properly served by mail with notice of the May 16, 2006 hearing.
Alfonso claims Jalime fraudulently obtained two automobiles by not telling him about them. Jalime’s March 1, 2005 marriage dissolution petition declares the two automobiles as community property. The agreement does not mention the automobiles, the judgment does not dispose of them, the trial court retained jurisdiction over the division of property, and the record does not show who currently possesses the automobiles. This is substantial evidence that Jalime did not fraudulently obtain the automobiles.
At the hearing on the motion, the trial court said, “[a]s to the fraud aspects of it the section that counsel cited the court read the pleadings and the declarations and didn’t feel you made out the necessary items regarding that to qualify for a set aside as far as the agreement entered into the judgment that was ultimately issued.” Because there was substantial evidence that Alfonso knew what he was signing and was properly served with notice of the hearing, the court did not abuse its discretion by refusing to set aside the judgment for fraud.
Alfonso also moved to set aside the judgment for duress under section 2122, subdivision (c). In the context of marriage dissolution, duress “‘“‘includes whatever destroys one’s free agency and constrains [him or her] to do what is against [his or her] will, [and] may be exercised by threats, importunity or any species of mental coercion.’”’” (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1523, citations omitted.) “‘[Duress] is shown where a party “intentionally used threats or pressure to induce action or nonaction to the other party’s detriment.”’” (Ibid.) “‘The coercion must induce the assent of the coerced party, who has no reasonable alternative to succumbing.’” (Ibid.)
In his declaration, Alfonso stated Jalime pressured him into signing the agreement by telling him he would not see his children unless he signed it. In her declaration, Jalime denied threatening Alfonso and said she and Alfonso reached the terms of the agreement together. Again, the declarations conflict, but Jalime’s declaration provides substantial evidence that there was no coercion. Thus, the trial court properly refused to set aside the judgment for duress.
Alfonso argues the May 16, 2006 judgment should be set aside on equitable and public policy grounds. But he did not appeal from the May 16, 2006 judgment, only the December 11, 2006 order denying his motion to set the judgment aside. An appeal from the judgment now would be untimely. Notice of entry of the judgment was mailed to Alfonso by the court clerk on May 17, 2006. Under California Rules of Court, rule 8.104(a), he had 60 days from May 17, 2006 to appeal the judgment. His November 16, 2006 motion to set aside the judgment did not extend his time to file an appeal from the judgment. (In re Marriage of Eben-King & King, supra, 80 Cal.App.4th at p. 113.) The deadline to file an appeal is jurisdictional; we cannot hear an appeal from the May 16, 2006 judgment now. (Id. at p. 116.)
Finally, Alfonso claims the trial court violated the California and United States Constitutions by depriving him of property without due process of law. Alfonso forfeited this argument on appeal by not raising it in the trial court. (Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131.)
DISPOSITION
The order is affirmed. Respondent is to have her costs on appeal.
We concur: MANELLA, J., SUZUKAWA, J.