Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 07HL04690, Corey S. Cramin, Judge.
Paula Skerston, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P.J.
Appellant Paula Skerston was here in 2008 after an injunction was issued against her prohibiting her from harassing respondent Linda Sheehan. We affirmed the trial court’s order.
Last year, she appealed an order granting sanctions to the attorney who represented Sheehan. She won that appeal, and we reversed the sanctions award.
She returns now, complaining her attempt to revive the original matter by filing a motion contending the injunction was based upon fraudulent misrepresentations and omissions, was erroneously dismissed as untimely. This will lower her batting average to.333 on this case; the trial judge was correct.
The gravamen of Skerston’s complaints in this case is summed up in the first sentence of her “Statement of the Case.” She says, “On October 4, 2007, respondent Linda Sheehan and attorney Robert Newman framed appellant Paula Skerston.” (Appellant’s Opening Brief, page 6.) She sought to re-open the case on that basis, claiming extrinsic fraud by respondent. She provides several pages of assertions supporting her allegations about the impropriety of the restraining order, but the trial court ruled the motion to re-open the case was untimely and did not consider them. Nor can we.
As the trial court correctly ruled, her motion was untimely. The order she complains about was entered October 23, 2007. Her motion to set it aside was filed almost three years later, on September 7, 2010. The trial court correctly determined appellant’s “Motion to Set Aside and Vacate a Restraining Order that was Obtained by Fraud” was properly treated as a motion to set aside a judgment under Code of Civil Procedure section 663. There simply appears to be no other statutory basis for the relief appellant sought – at least none that we can find and appellant has not suggested any. Such motions must be brought no later than 180 days after the entry of judgment. Appellant did not comply with that requirement.
All further statutory references are to the Code of Civil Procedure.
Appellant complains that while this court rejected her initial appeal on December 3, 2008, she found out about the adverse ruling only when she contacted the court’s clerk’s office on December 18, 2008. But this is the latest date set out anywhere in appellant’s brief, and even if we were somehow to adopt it as the operative date for her motion, it would be well outside the 180 day time frame of section 663.
Appellant, an attorney, contends that section 338, subdivision (d) gives her three years in which to file “an action for relief on the ground of fraud or mistake.” But section 338, subdivision (d) applies to actions – lawsuits – not motions. Appellant did not seek to file a new lawsuit, an action; she sought to revive an old one. She did so through what she herself recognized in her caption to be a “motion” in case number 07HL04690. That lawsuit could not be revived. It was finally and irretrievably dead as soon as the time limits provided for by section 663 expired.
Furthermore, none of the disjointed and unsupported allegations that make up the bulk of Skerston’s brief set out any instances of extrinsic fraud. To the extent we are able to figure them out, they relate wholly to intrinsic fraud, so any attempt to proceed on the basis of extrinsic fraud seems unsupported.
There is simply no basis for this appeal. Respondent saved appellant a considerable amount of money by not responding to it and requesting sanctions.
The judgment is affirmed. Costs, if any, are awarded to respondent.
WE CONCUR: ARONSON, J., IKOLA, J.