Opinion
NOT TO BE PUBLISHED
Appeal from a postjudgment order of the Superior Court of Orange County No. 03D005278, Richard G. Vogl, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Mathews Funk & Associates and Ronald B. Funk for Appellant.
Law Office of Brian G. Saylin and Brian G. Saylin for Respondent.
FYBEL, J.
Introduction
William J. Stone (William) appeals from the order denying his motion to set aside the judgment entered following a trial in an action to dissolve his marriage to Louisa Anne Stone (Louisa). William moved to set aside the judgment under Code of Civil Procedure section 473 and the “Relief from Judgment” chapter of the Family Code, Family Code section 2120 et seq., on the grounds Louisa committed perjury during trial and he discovered new evidence after trial to support that assertion. We conclude the trial court did not abuse its discretion in denying the motion and therefore affirm.
Facts and Proceedings in the Trial Court
William and Louisa had been married for over 25 years and had four minor children when the petition to dissolve their marriage was filed in June 2003. The matter was tried in May 2008. At trial, Louisa was represented by counsel, and William represented himself in propria persona.
About six weeks before trial, Louisa’s counsel sent a letter to William and his then counsel explaining the claims and allegations of Louisa’s case. The letter asserted Louisa did not sign transfer documents for several lots of real property sold after William and Louisa’s separation and did not receive any sale proceeds.
At trial, transfer documents with Louisa’s signature were received in evidence for eight lots of property (lots 1 6, 8, and 9). Louisa testified she signed the transfer documents for lot 9 but denied signing any other transfer documents. She testified to receiving only $5,000 in sale proceeds for the properties. She acknowledged the signatures on the transfer documents were hers; however, she believed they might have been photocopied from another document and pasted in because the transfer documents had the wrong address for her.
On May 23, 2008, the trial court issued a 23 page “Decision of the Court on Submitted Matter.” As relevant here, the court found William converted a total of $150,302 in community property funds from the sale of the lots of real property, as follows:
1. Lots 1 and 2 -- $41,852
2. Lot 3 -- $20,750
3. Lot 4 -- $21,400
4. Lot 5 -- $21,200
5. Lot 6 -- $20,500
6. Lot 8 -- $24,600
The court found that William used cash proceeds of $230,000 from the sale of real property in Guam for living expenses and therefore owed Louisa $115,000 as her division of community property. The court imposed $25,000 in sanctions against William, based on a finding of “bad faith exhibited repeatedly by [William] in his breach of fiduciary duties, and a failure to act in good faith with respect to management and control of community property.”
In June 2008, William, represented by counsel, submitted objections to the trial court’s decision and requested the court to reopen trial. William asserted Louisa committed perjury when she testified at trial that she did not sign the transfer documents for lots 1 through 6 and 8 and had no knowledge of those sales. He attached copies of the relevant pages from the notary public books with Louisa’s signature, driver’s license number, and thumb prints, and asserted these established she had indeed signed the transfer documents for lots 1, 2, 3, 5, and 6. William did not produce a declaration from the notary public.
Louisa filed a declaration in response to the objections in which she asserted: “I never testified that I NEVER executed any of the documents which were before the court.... I never testified that I never received any of the documents. As I recall, I testified (and the truth is) that I only recall signing and receiving a few documents. I testified that I did execute some of [the] documents and that I did visit a Notary Public for signing.” Louisa asserted that William used an invalid power of attorney to sign her name on some transfer documents and that he had not provided proof she signed the transfer documents for lots 4, 8, and 9.
After a hearing on August 14, 2008, the trial court overruled William’s objections and denied the request to reopen trial. A judgment was entered on the same day. William never appealed from the judgment.
In January 2009, William filed a motion to vacate judgment pursuant to Code of Civil Procedure section 473 and Family Code section 2122 asserting the judgment was the product of Louisa’s perjured testimony. In a declaration submitted in support of the motion, William stated he “had never considered that L[ouisa] would lie about her involvement in the sale of our real property estate” and “[d]uring the first two sessions at trial, it became obvious to me that L[ouisa] would lie and misrepresent her knowledge to the court in order to obtain an unfair and inequitable result regarding the division of our marital estate.” He claimed that after the second session of trial, he requested a continuance to hire a lawyer, but the trial court denied his request without explanation.
William also stated in his declaration that during the week of December 22, 2008, he happened to run into the notary public who, he claimed, had witnessed Louisa’s signature on several of the sale transfer documents. The notary public told William that Louisa had approached her during the summer of 2008 and had asked her to sign a paper stating Louisa had not signed any deeds or real estate sale documents. The notary public declined the request. William contacted his former attorney, who agreed to prepare a declaration for the notary public to sign. When William returned to the notary public with a declaration, she was hesitant to “get involved” and declined to sign it. According to William, the notary public would testify truthfully if subpoenaed.
William claimed he was in the process of obtaining certified copies of sales documents signed by Louisa. He requested an evidentiary hearing to submit those documents and to allow the notary to testify.
In opposition to the motion, Louisa submitted her declaration reiterating she had never testified she did not sign any of the sales transfer documents, but had testified she recalled signing a few documents and visiting a notary public. She did not dispute that William had sought a trial continuance. Louisa declared she contacted the notary public in July 2008 to request copies of pages from the notary book to respond to William’s allegations of perjury made in the objections to the trial court’s decision. The notary public became upset when Louisa confronted her about the lack of fingerprints in the book for the documents related to the sale of lot 3. Louisa asked the notary public to write a statement confirming she had not taken fingerprints for those documents. The notary public refused, stating she could lose her notary public license, she was a friend of William’s, and she did not want to get involved.
Louisa also declared: “On July 14, 2008, I contacted a hand writing analyst, Brenda Anderson of Expert Handwriting Analysis. I submitted samples of closing documents for the sale of Lots 1 and 2. In her report dated August 8th, 2008 it states ‘It is the professional opinion of the two documents submitted, both were found to be forged[.’]” Louisa did not submit a declaration from the handwriting expert or her report.
On March 3, 2009, William submitted a declaration from the notary public to the trial court. The declaration stated: “On January 16, 2004, Louisa Anne Stone, entered my store accompanied by William J. Stone, whom she introduced as her husband. [¶]... Mrs. Stone, presented photographic identification, and executed a warranty deed and seller’s affidavit, regarding certain real property shown as Lot 3, located in Valley County, Idaho. [¶]... Further, upon Mrs. Stone having executed said warranty deed, as part of the foregoing transaction, I affixed my notary stamp to the warranty deeds and signed my name. [¶]... Finally, I required Ms. Stone to sign my notary record book and to affix her thumb print in said book for each of her signatures that I notarized that day. [¶]... On February 17, 2004, Louisa Anne Stone... returned to my store, presented photographic identification, and executed warranty deeds regarding certain real property shown as lots 1, 2, 5, and 6, all located in Valley County, Idaho. [¶]... Again, upon Mrs. Stone having executed said warranty deeds, as part of our transaction, I affixed my notary stamp to the warranty deeds and signed my name. [¶]... Finally, I again required Ms. Stone to sign my notary record book and to affix her thumb print in said book for each of her signatures that I notarized that day.”
The trial court denied William’s motion to vacate judgment on March 6, 2009.
Discussion
William sought relief under both Code of Civil Procedure section 473 and the Relief from Judgment chapter of the Family Code, Family Code section 2120 et seq. “Section 473 and the Relief from Judgment chapter [citation] now 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.) Within six months of entry of judgment, a litigant may seek relief under both Code of Civil Procedure section 473 and the Relief from Judgment chapter of the Family Code. (In re Marriage of Heggie, supra, at p. 32.)
I.
Code of Civil Procedure Section 473Code of Civil Procedure section 473, subdivision (b) provides in pertinent part: “The court may, upon any terms as may be just, 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.” We review an order denying a motion for discretionary relief under section 473 under an abuse of discretion standard. (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1266; State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)
The designation of “subdivision” or “subd.” is omitted from code citations (with one exception) because the use of parentheses surrounding a letter already establishes the reference to a subdivision.
As a threshold matter, we reject Louisa’s argument that William was collaterally estopped from seeking relief under Code of Civil Procedure section 473 because the trial court previously overruled his objections to its decision. Collateral estoppel requires, among other things, a final judgment on the merits in the previous suit. (Producers Dairy Delivery Co. v. Sentry Ins. Co. (1986) 41 Cal.3d 903, 910.) The order overruling William’s objections is not a final judgment. The judgment ultimately entered in this case cannot bar a motion under section 473 because relief from a judgment or dismissal is the very relief section 473 offers. Nor do we deem William’s motion to vacate judgment under section 473 to be an untimely motion under Code of Civil Procedure section 1008 to reconsider the trial court’s ruling on his objections to the decision and request to reopen trial.
William argues Louisa’s supposedly perjured testimony constituted surprise supporting relief under Code of Civil Procedure section 473. “The term ‘surprise,’ as used in section 473, refers to ‘“some condition or situation in which a party... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.”’ [Citation.]” (State Farm Fire & Casualty Co. v. Pietak, supra, 90 Cal.App.4th at p. 611.) Louisa’s trial testimony does not come within that definition. Before trial, Louisa’s counsel notified William, through his former counsel, that Louisa did not sign transfer documents for several of the lots. William has cited no evidence showing that before trial Louisa stipulated to the authenticity of her signature or in any way led him to believe she did not contest the validity of any of the transfer documents. William could have subpoenaed the notary public to testify at trial to counter Louisa’s testimony but failed to do so.
II.
Relief from Judgment Chapter of the Family Code
Family Code section 2120 et seq. authorizes an action or motion to set aside a dissolution judgment on specified grounds, including fraud and perjury. (Fam. Code, §§ 2120, 2122, 2125.) Family Code section 2121(a) provides: “In proceedings for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter.”
The grounds and time limits of relief are contained in Family Code section 2122, which provides, in relevant part: “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. [¶] (b) Perjury. An action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury.”
Before granting relief, the trial court must find that the facts alleged as grounds for relief “materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.” (Fam. Code, § 2121(b).)
An order denying a motion to set aside a judgment under Family Code section 2122 is reviewed under an abuse of discretion standard. (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.)
William argues Louisa’s supposedly perjured testimony constituted actual fraud within the meaning of Family Code section 2122(a). Civil Code section 1572, subdivisions 1 and 2 define “actual fraud” to include “[t]he suggestion, as a fact, of that which is not true, by one who does not believe it to be true” and “[t]he positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true.” Perjured testimony is a form of actual, intrinsic fraud. (Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 832-833.)
The Legislature enacted the Relief from Judgment chapter of the Family Code in part to eliminate the “‘considerable confusion’” caused by the distinction between extrinsic and intrinsic fraud under traditional equitable set aside law. (In re Marriage of Varner, supra, 55 Cal.App.4th at p. 137.) Consistent with this purpose, courts have interpreted Family Code section 2122 as abolishing the extrinsic/intrinsic fraud distinction for actions brought under that section. (In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1345, fn. 10; Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1144, fn. 7.) Either type of fraud will support a motion under section 2122(a) so long as the fraud is actual rather than constructive.
Family Code section 2122(a) provides relief from actual fraud only where the defrauded party was (1) “kept in ignorance,” or (2) “in some other manner was fraudulently prevented from fully participating in the proceeding.” William was not kept in ignorance. If Louisa committed perjury, he would have known so when she testified because he had the sales transfer documents that he claimed she had signed. William has not shown that Louisa’s supposed perjury prevented him from fully participating in the trial.
William argues Louisa’s supposedly perjured trial testimony also is ground for relief under Family Code section 2122(b). To repeat, it states: “Perjury. An action or motion based on perjury in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury.”
William argues any form of perjury, including perjured testimony, may be ground for relief under Family Code section 2122(b). Louisa argues section 2122(b) permits relief only for types of perjury expressly identified in the subdivision. Both interpretations are reasonable.
In support of his interpretation, William cites the Hogoboom and King Rutter Group treatise on family law, which states: “Any perjury in the underlying proceedings that materially affected the outcome... is apparently a cognizable ground for relief.... [B]ecause §2122(b) does not otherwise provide, it may also include perjured testimony....” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2009) ¶ 16:113, p. 16 30.3 (rev. #1, 2009).)
The structure of Family Code section 2122 supports William and the treatise’s interpretation. Section 2122 states it sets forth (1) the grounds and (2) the time limits for a motion to set aside a judgment. Following this structure, each subdivision is divided in two sentences: The first sentence states the grounds for relief, and the second states any time limits for seeking relief. The first sentence of section 2122(b) is the one word sentence “Perjury.” This sentence supports the conclusion any perjury may be a ground for setting aside a judgment. The second sentence of section 2122(b) sets forth a time limit for an action or motion based on perjury in the preliminary or final declaration of disclosure or in the current income and expense statement.
Thus, the first sentence of Family Code section 2122(a) states the ground for relief as “[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.” The second sentence of section 2212(a) provides this time limit: “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.” That pattern follows through each succeeding subdivision of section 2122.
William’s interpretation creates the possibility that an action or motion based on any other kind of perjury would have no time limit. To avoid that result, it is reasonable to limit the meaning of the word “perjury” in Family Code section 2122(b) to perjury in the preliminary or final declaration of disclosure or in the current income and expense statement. The Rutter Group treatise explains, “[c]onceivably, the Legislature’s failure to specify a time limit for relief based on other perjury might implicitly mean the only perjury cognizable under §2120 et seq. is a perjured declaration of disclosure, a perjured waiver of the final declaration of disclosure, or a perjured income and expense declaration. But that is not what the statute states; and the issue thus awaits judicial or legislative clarification.” (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 16:116, p. 16 31 (rev #1, 2007).)
Neither party has supplied legislative history to aid in an interpretation of Family Code section 2122(b), and case law is inconclusive. In In re Marriage of Brewer & Federici, supra, 93 Cal.App.4th at page 1344, the court stated, “[u]nder this statute, there are five exclusive grounds to set aside a judgment.” Similarly, in In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684, the court stated, “any action or motion to set aside such a judgment must be based on actual fraud, perjury, duress, mental incapacity, or mistake.” Neither case, nor any case we know of, addresses whether perjury under section 2122(b) includes perjured trial testimony.
We need not, however, decide this issue of statutory interpretation. If Family Code section 2122(b) permitted relief based on perjured trial testimony, we would conclude nonetheless the trial court did not abuse its discretion in denying William’s motion. The trial court heard the testimony of Louisa and William at trial and judged their credibility and truthfulness. The evidence presented in support of and in opposition to the motion to set aside the judgment was in conflict as to whether Louisa committed perjury. Specifically, in opposition to the motion to set aside the judgment, Louisa submitted a declaration contrary to the declaration submitted by the notary public. The trial court judges the credibility of declarations, and, therefore, we must resolve conflicts in the declarations and draw all reasonable inferences from them in favor of the trial court’s order. (Whyte v. Schlage Lock Co. (2002) 101 Cal.App.4th 1443, 1450.)
Disposition
The order denying the motion to vacate judgment is affirmed. Respondent to recover costs incurred on appeal.
WE CONCUR: BEDSWORTH, ACTING P. J.IKOLA, J.