Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. LD022039, Susan K. Weiss, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Syrus Parvizian, in pro. per., for Appellant.
Law Office of Alex Powell and Alex Powell for Respondent.
VOGEL, Acting P.J.
This is a marital dissolution action in which the husband appeals from an order denying his fourth motion to vacate a default judgment. We affirm.
FACTS
A.
Malak and Syrus Parvizian, married since 1967, separated 30 years later and in April 1997 Malak filed for dissolution of the marriage. Syrus did not respond and his default was entered in June 1998, but he thereafter participated in mediation and the dispute was resolved by stipulation. In December 1998, the court entered a judgment based on the parties’ stipulation, terminated the marriage, divided the property, and resolved all issues. In April 1999, Syrus claimed the petition had not been properly served upon him and that he had not read the stipulation before he signed it, and the trial court granted his motion to set aside the default and the judgment, and deemed Syrus’s response to the petition filed as of December 30, 1998.
Discovery disputes arose and in May 1999, the court granted Malak’s motion to compel responses and ordered Syrus to pay sanctions to Malak. Discovery continued over the next 18 months, during which time Syrus was sanctioned two more times. By October 2000, at least four lawyers had appeared for Syrus, and he also represented himself at various times.
On February 2, 2001, Syrus failed to appear for a mandatory settlement conference. Malak’s lawyer told the court the matter had been set four times before, and continued each time. The lawyer “specially” appearing for Syrus at the February 2 conference (who had no idea why Syrus had failed to appear) told the court that Syrus’s attorney of record (Margaret A. Jewett) was about to file a motion to withdraw. The trial court continued the conference to April 2, 2001 and, on its own motion, issued an order to show cause with regard to sanctions against Syrus for his failure to appear. Malak gave notice.
On March 7, Jewett filed a motion to withdraw as Syrus’s attorney of record, explaining that Syrus refused to follow her advice, refused to communicate with her, and refused to sign a substitution of attorneys form. On April 2, the mandatory settlement conference and order to show cause hearing were continued to June 20. On April 13, the trial court granted Jewett’s motion to be relieved. On April 17, Jewett served Syrus with (1) a copy of the signed order, (2) a “warning” that his failure to take appropriate action could result in serious legal consequences, and (3) notice of the date, time and place of the June 20 hearing, and a list of the matters to be heard at that time. Syrus, who had not filed the required documents, appeared in propria persona on June 20. The court found he had violated the local rules and a specific court order, and struck his answer as a sanction for his failure to appear and failure to file any of the required papers.
On June 29, Syrus moved to set aside his default, claiming he had thought he was represented by counsel and that his lawyer would file the required documents. The trial court denied the motion, and a default prove-up hearing was held in October, following which a default judgment was entered which divided the parties’ property, ordered Syrus to make an equalization payment to Malak of about $218,500, and ordered Syrus to pay Malak’s attorney’s fees of about $22,700.
In November 2001, Syrus (represented by a new lawyer) filed a motion for relief from the default and default judgment, alleging that Jewett had negligently failed to protect him, and charging Malak with perjury in failing to disclose all of her assets. Malak opposed the motion, and it was denied in February 2002. Syrus, once again in propria persona, appealed from the judgment and from the order denying his motion to vacate. We affirmed. (In re Marriage of Parvizian (May 21, 2003, B158111) [nonpub. opn.].)
B.
Meanwhile, two other lawsuits were filed.
In June 2002, Syrus sued Jewett for legal practice, but Jewett’s demurrer was sustained without leave to amend (on statute of limitations grounds) and Syrus’s motion for relief from that order denied. Syrus (in propria persona) appealed, and Division Seven of our court reversed, finding that his claims were not time barred. (Parvizian v. Jewett (Dec. 10, 2003, B163437) [nonpub. opn.].) On remand, Jewett’s motion for summary judgment was granted. Syrus (in propria persona) appealed but Division Seven affirmed. (Parvizian v. Jewett (Mar. 22, 2006, B179122) [nonpub. opn.].)
In May 2003, Malak sued Syrus and others to enforce the money judgment she had obtained in the marital dissolution action and to set aside Syrus’s transfers of real property as fraudulent. Malak prevailed in all respects except her request for attorney’s fees, which the trial court denied because there was no legal basis for the award. Syrus (in propria persona) appealed, and Malak cross-appealed on the attorney fee issue, but Division Five of our court affirmed both the judgment and the order (and awarded costs to Malak). (Parvizian v. Parvizian (Oct. 17, 2005, B178609 [nonpub. opn.].) Back in the trial court, Malak’s motion for costs of about $1,600 was granted. Syrus (in propria persona) appealed from that order, and Division Five remanded the matter for recalculation of the amount of the award. (Parvizian v. Parvizian (Aug. 17, 2007, B191718) [nonpub.opn.].)
C.
In February 2006, Syrus (represented by Philip Sheldon) returned his attention to our case and, once again, filed a motion to vacate the October 2001 judgment and for an accounting, claiming the evidence presented by Malak at the default prove-up hearing (1) fraudulently concealed her interest in two pizza businesses (“Original Hank’s” and “Original Jimmie’s”), (2) misrepresented her income from a “hair design” business, (3) fraudulently mischaracterized a townhouse as community property when it had been purchased with Syrus’s separate property funds, and (4) misrepresented the extent of the community debts.
A hearing was held in August, at which time Syrus was represented by yet another lawyer (Ross Reghabi). The motion was denied, and Syrus (once again in propria persona) appeals from that order.
DISCUSSION
I.
Syrus contends perjury is a ground for relief from a judgment, that there is no time limit barring relief on this ground, and that the trial court should have vacated the October 2001 judgment of dissolution. We disagree.
“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.” (Fam. Code, § 2122, subd. (b).) Assuming without deciding that this statute is limited to perjury in financial documents and that it does not apply to testimony given at a default prove-up hearing (Kuehn v. Kuehn (2000) 85 Cal.App.4th 824), a cause of action alleging fraud (including perjury) must nevertheless be brought within three years of the date the aggrieved party discovers the facts constituting the fraud (Code Civ. Proc., § 338, subd. (d)).
There is nothing in the record or in Syrus’s brief about when he discovered Malak’s perjury or why his motion to vacate was not filed until February 2006. Since he was present when Malak testified in October 2001, and since he filed an unsuccessful motion to vacate on grounds of fraud in November 2001, it is clear that the relief he sought in 2006 was not timely.
II.
Syrus contends the trial court has “continuing jurisdiction” to adjudicate omitted assets at any time. Although he is correct in the abstract (Fam. Code, § 2556), the point is meaningless in the context of this case -- because there is nothing in the record to suggest there were omitted assets or debts.
III.
We summarily reject Syrus’s contention that his evidence of Malak’s wrongdoing must be accepted because it was not controverted by substantial evidence. The trial court’s credibility calls are binding on this appeal. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926.)
IV.
Finally, we reject Malak’s request for sanctions for a frivolous appeal. Although this appeal clearly lacks merit, we do not believe it meets the definition of frivolous. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
DISPOSITION
The order is affirmed. Malak is entitled to her costs of appeal.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.