Opinion
D072846
01-16-2018
In re the Marriage of JOSEPH A. and DEYANIRA M. ORTOLA. JOSEPH A. ORTOLA, Appellant, v. DEYANIRA M. ORTOLA, Respondent.
Joseph A. Ortola, in pro. per.; Thomas Pederson; Bekken Law Group and Robert Bekken for Appellant. Rancho Family Law Group and Jonathon A. Zitney for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SBFSS56123) APPEAL from an order of the Superior Court of San Bernardino County, Arthur A. Harrison, Judge. Affirmed. Joseph A. Ortola, in pro. per.; Thomas Pederson; Bekken Law Group and Robert Bekken for Appellant. Rancho Family Law Group and Jonathon A. Zitney for Respondent.
In this marital dissolution action, Joseph A. Ortola (Husband) appeals from an order of the family court denying his request for an order to set aside a judgment after trial (RFO). Because Husband has not met his burden of showing that the court erred in denying the relief he requested under Code of Civil Procedure section 473, we affirm the family court's order.
Subsequent unidentified statutory references are to the Code of Civil Procedure.
I.
RECORD ON APPEAL
The record on appeal consists of five volumes of clerk's transcripts (covering more than 14 years) and four volumes of reporter's transcripts (covering 22 dates over nine years, including at least three trials). In addition, Husband asks that we take judicial notice of an additional 65 exhibits (totaling 500 pages) from a related writ proceeding.
Despite the size of the record, however, in violation of California Rules of Court, rule 8.204(a)(1)(C), Husband has failed to provide sufficient record references to support many of the specific arguments in support of his position on appeal. "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see rule 8.204(e)(2)(B).)
Subsequent unidentified rule references are to the California Rules of Court.
In his briefing, Husband suggests that "[t]he integrity of the judicial system" is at issue based on what he describes as a "fraud upon the Court" and "perjured testimony." Even though "a reviewing court has no duty to search through the record to find evidence in support of a party's position" (Williams v. Williams (1971) 14 Cal.App.3d 560, 565), because of the seriousness of what Husband has argued, we have chosen to disregard his noncompliance with the rules, as permitted under rule 8.204(e)(2)(C). Instead, we have independently reviewed everything Husband submitted — namely, more than 2,000 pages of the designated record and an additional 500 pages of the potentially judicially noticeable exhibits. Based on our extensive review of the record, we are convinced that the family court did not abuse its discretion or otherwise treat Husband unfairly during the RFO proceedings.
II.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2000, Husband filed an initial petition to dissolve his marriage to Wife and dismissed the petition in August 2000. As relevant to one of the issues Husband raises on appeal (and has been raising since at least 2006), this petition contained typewritten dates of "May 14, 1996" and "June 1, 1999" as the dates of marriage and separation, respectively.
Husband filed the underlying petition to dissolve his marriage to Wife on January 12, 2001 (2001 Petition). In March 2003, the family court filed a bifurcated status-only judgment, ending marital status as of March 26, 2003, and reserving jurisdiction over all other issues (2003 Judgment).
In the 2001 Petition, the statistical facts include: a typed date of marriage of "May 14, 1996"; a typewritten date of separation of "June 1, 1999" that is crossed-out by hand; and a handwritten date of separation of "Jan. 11, 2001." Wife's response to the petition indicates a January 30, 2011 date of separation.
Consistent with the handwritten portion of his 2001 Petition, in a trial brief Husband filed in July 2002, he asserted a May 14, 1996 date of marriage and a January 11, 2001 date of separation.
Following a trial in January 2006, the family court filed a statement of decision and related judgment on certain reserved issues — one of which was the characterization of a specific residence (Highland Property). As relevant to this appeal, despite his 2001 Petition and his 2002 trial brief, at the January 2006 trial Husband disputed the January 2001 date of separation; he suggested that on his 2001 Petition someone other than he had crossed out the typewritten date (June 1, 1999) and inserted the handwritten date (Jan. 11, 2001). The date of separation was important, according to the statement of decision, because Husband had purchased the Highland Property after June 1999 and before January 2011. Based on the ruling that Husband had purchased the residence prior to separation, the court impliedly found that the crossed-out typewritten date of June 1, 1999, was not the date of separation. In July 2006, the court filed a judgment on reserved issues (2006 Judgment). In his appeal from the 2006 Judgment, Husband could have challenged the finding of the date of separation, but prior to briefing, the court granted Husband's request to dismiss the appeal.
On our own motion, we take judicial notice of the court's docket in In re Marriage of Ortola, case No. E041216. (Evid. Code, §§ 459, subd. (a), 452, subd. (d); Epic Communications, Inc. v. Richwave Technology, Inc. (2015) 237 Cal.App.4th 1342, 1347, fn. 3 [appellate court took judicial notice of docket in prior appeal in same case].)
In 2009, Husband was present at a court hearing at which all parties stipulated to a date of separation of July 1, 2001.
In late July 2010, Husband filed a Chapter 13 bankruptcy case, In re Joseph Ortola, United States Bankruptcy Court, Central District of California, case No. 6:10-bk-34218-MJ (the Bankruptcy Case). In March 2011, the bankruptcy court ruled that the automatic stay in Husband's Bankruptcy Case (see 11 U.S.C. § 362) did not affect Husband's marital dissolution action, and the orders and proceedings in the marital dissolution action were not in violation of the automatic stay.
Husband had filed an earlier bankruptcy case in May 2010, but it was dismissed six weeks later in early July 2010.
On our own motion, we take judicial notice of the bankruptcy court's docket in the Bankruptcy Case. (Evid. Code, §§ 459, subd. (a), 452, subd. (d); Van Zant v. Apple Inc. (2014) 229 Cal.App.4th 965, 971, fn. 3 [appellate court took judicial notice of federal court docket].) In his reply brief, Husband asked that we take judicial notice of this docket; however, Husband's request is ineffective, since it does not comply with rule 8.252(a).
In June 2011, more than five years after the 2006 Judgment, as part of a further trial on reserved issues, Husband submitted a trial brief in which he: (1) contended July 15, 1999, to be the date of separation; (2) accused Wife of being the source of the handwriting on the 2001 Petition, in which the typewritten date of separation ("June 1, 1999") was crossed out and the handwritten date of separation ("Jan. 11, 2001") inserted; and (3) stated that he intended to file a motion "before the TRC" to set aside the "interlocutory judgment" based on Wife's alleged alteration of his 2001 Petition.
Husband's 2001 trial brief provides no explanation for his belief that the date of separation changed from June 1, 1999 (in the original petition and crossed out in the 2001 Petition), to January 11, 2001 (in the 2002 trial brief), to July 1, 2001 (in 2009 stipulation), to July 15, 1999 (in the 2011 trial brief).
We assume Husband intended "TRC" to refer to a trial readiness conference. Husband's trial brief does not suggest whether he contended the "interlocutory judgment" to be the 2003 Judgment (status only), the 2006 Judgment (reserved issues), or some other judgment.
Later in June 2011, Husband filed an application to continue the trial that was scheduled to proceed on July 28, 2011. Again, Husband told the court that he "plans to move, shortly, to set aside the interlocutory judgment wherein the date of separation was established upon a document, the [2001] Petition, which had been unlawful[ly] altered."
We note that, like the 2013 trial that resulted in the 2014 Judgment at issue in the present appeal (discussed in the text, post), here too Husband asked that the trial be continued because Husband's prior attorney "did not prepare for trial."
In his supporting declaration, Husband testified that his former attorney may have been negligent in not having already filed such a motion.
The day before the scheduled hearing on his application to continue the trial (which was to commence two weeks later), Husband filed: (1) in the bankruptcy court, related to Husband's bankruptcy case, an adversary proceeding against Wife, the family court, the family court judge, the State of California, some of the lawyers involved in the dissolution of marriage action, and others, Ortola v. Ortola (In re Ortola), United States Bankruptcy Court, Central District of California, case No. 6:11-ap-01820-MJ (Adversary Proceeding); and (2) in the family court, a notice of removal of the dissolution of marriage action to the bankruptcy court based on the filing of the adversary proceeding.
On our own motion, we take judicial notice of the bankruptcy court's docket in the Adversary Proceeding. (Evid. Code, §§ 459, subd. (a), 452, subd. (d); Van Zant v. Apple Inc., supra, 229 Cal.App.4th at p. 971, fn. 3 [appellate court took judicial notice of federal court docket].)
Despite the notice of removal, the family court commenced the further trial on reserved issues as scheduled on July 28, 2014. Although Husband was not present, the court proceeded after expressly finding that Husband had received proper notice, yet failed to appear. In mid-September 2011, the family court filed its judgment on further reserved issues (2011 Judgment).
Wife's attorney told the family court that, although Husband "continues to be in a bankruptcy proceeding[, t]here's a complete relief from stay from the bankruptcy court allowing him to proceed. [¶] . . . [¶] So we know of no pending action in the bankruptcy court that would in any way prevent you from having a full trial on all issues." While that was an accurate statement based on a March 2011 order in Husband's Bankruptcy Case (No. 6:10-bk-34218-MJ), Wife's attorney did not mention the automatic stay associated with Husband's Adversary Proceeding (No. 6:11-ap-01820-MJ).
The issues on which the family court ruled included: child custody and visitation; child support; spousal support; attorney fees; sale of a commercial real property on N. Riverside Avenue in Rialto; confirmation of certain property to Husband and certain property to Wife; Husband's equalization payment to Wife; and division of community debt.
Two months later in November 2011, in the Adversary Proceeding, the bankruptcy court ordered the 2011 Judgment (and all other family court rulings after the removal of the Adversary Proceeding on July 14, 2011) "void and of no force or effect" on the basis that the "State Court does not have jurisdiction to make any rulings in the [dissolution of marriage action] pending further Order from the Bankruptcy Court."
Neither the parties nor the record on appeal explains exactly what happened later in the bankruptcy court, but we have judicially noticed from the dockets: (1) in December 2011, the bankruptcy court dismissed the Adversary Proceeding as to Wife and remanded the dissolution of marriage action to the family court; and (2) in July 2012, the bankruptcy court dismissed the Bankruptcy Case (for Husband's failure to have made required payments under his Chapter 13 plan).
Once back in the family court, the parties prepared for trial on the remaining reserved issues. As part of this process, at a January 2013 trial setting conference at which Husband and his attorney were present, the family court ordered the parties to file their respective witness lists, exhibit lists and other trial-related documents by a specified date in March 2013. Husband failed to file any of these documents, and at a March 2013 hearing, the family court ruled that Husband "would not be allowed to file an Exhibit List and would not be allowed to proceed with an affirmative case or to call witnesses" (March 2013 Sanctions Order).
After what the family court described as "[n]umerous continuances," at a July 2013 hearing the court ordered the matter to proceed to trial on September 30, 2013, setting aside a full week of court time to try the remaining reserved issues. At the designated date and time for trial, Husband's counsel announced that he had been ordered to appear at a contempt proceeding in Riverside. Over Wife's objection, the family court continued the trial until the next morning, noting that the court had reserved the entire week for the trial and, accordingly, that the trial "will be trailing day to day."
The following morning, October 1, 2013, Husband's attorney presented a written application to continue the trial. Although the clerk's transcript does not contain a copy of the application, the reporter's transcript discloses that the basis of the application was that counsel was "not prepared to proceed for trial at this time." Wife objected to the lack of notice, and Husband's counsel repeated that he was not ready to proceed at least three times. According to Husband's counsel, the principal reason he needed more time was the "recent discovery" of "an exorbitant amount of fraud upon this court" — in particular, the handwritten alteration to the typewritten date of separation on Husband's 2001 Petition. Wife's counsel reminded the court that, in a 2009 stipulation in open court with Husband present, as part of a compromise agreement, the parties agreed to the date of separation.
In his oral presentation to the court — with our recognition that the "unsworn statements of counsel are not evidence" (In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 11 (Zeth S.)) — counsel explained, "I had about four predecessors of attorneys before me. It was litigated for 12 years and nine months and literally I was given 24 bankers boxes of materials for [sic] my client to review. . . . I had two injuries this year, and . . . I have been trying to recoup with regards to my trial calendar since those injuries have subsided . . . ." Among other responses, Wife's counsel stated that Husband's counsel had been of record for at least a year and a half and during this time had successfully continued the proceedings 13 times.
The family court denied Husband's counsel's application and reaffirmed the prior order: Having reserved the entire week specifically to hear the remaining reserved issues, the court would proceed with the trial. The court indicated that the parties' 2009 stipulation as to the date of separation was "probably dispositive" of any potential fraud related to the date of separation listed on the 2001 Petition and ordered the parties and counsel to return that afternoon.
The October 1, 2013 afternoon session began with Husband's counsel again asking multiple times — and the family court denying the multiple requests — to continue the trial on the basis that counsel was unprepared.
Wife presented an opening statement in which she argued that Husband, as the petitioner, had the burden of going forward, but that if she was required to proceed first, she was asking for the same relief that the court ordered in the 2011 Judgment (that the bankruptcy court had ruled void for lack of jurisdiction), plus some additional penalties. In response, Husband's counsel again said that he was not ready to proceed. Among other reasons, counsel again mentioned fraud on the court related to the handwritten alteration of the typewritten date of separation on Husband's 2001 Petition — again representing that he "just recently" discovered that Wife committed the fraud. In doing so, Husband's counsel acknowledged the stipulated date of separation, suggesting without further explanation or any evidence, that Husband had stipulated "under duress." Wife's position was that any alleged fraud as to the date of separation on the 2001 Petition was "not relevant," because in 2009 the parties had stipulated in open court to a compromise date of separation.
Again without evidence, Husband's counsel argued: that he could only recall four or five continuances; that he was a sole practitioner; that there were 24 bankers boxes of documents; that he had "other cases" he was "trying to address with regards to trials"; and that he had a trial during the prior week and the contempt proceeding in Riverside the day before.
The family court stated that the trial would proceed, expressly finding that "this case has been delayed interminably" and that, as a litigation tactic, Husband and his attorney had sought "constant continuances" ever since the bankruptcy court set aside the 2011 Judgment. The court again gave Husband the opportunity to proceed (despite the March 2013 Sanctions Order), and Husband's counsel again declined.
Wife then moved for judgment on the pleadings — a judgment that would "simply reaffirm" all of the rulings in the 2011 Judgment (that the bankruptcy court had set aside for lack of jurisdiction). According to Wife, with Husband unwilling to proceed, Husband was unable to state any reason why the result would be any different in 2013. The family court denied Wife's motion, instead directing Wife to present whatever evidence she had.
In his opening brief on appeal, Husband argues that he was denied due process because the 2013 trial "was not a de novo trial," but rather "just a repeat of the [July 2011] trial which was declared null and void" by the bankruptcy court in November 2011. (Underscore omitted.) To the extent Husband contends that the family court relied on the 2011 Judgment or on the evidence presented at the July 2011 trial, Husband does not direct us to where in the record such reliance took place, and based on our independent review of the record (see pt. I., ante), neither the clerk's transcript nor the reporter's transcript supports such a contention. To the contrary, as we describe in the text, post, the court required Wife to put on her case, and other than partially enforcing the March 2013 Sanctions Order, the court allowed Husband to participate fully.
The trial proceeded. On the afternoon of October 1, 2013, Wife testified on direct examination. At the end of the afternoon, Husband's counsel stated that he wanted to cross-examine Wife and that he had a rebuttal witness and evidence that Husband wanted to present. Indicating that counsel's request was "not . . . unreasonable," the family court ruled that Husband could proceed as requested at the appropriate time. This was acceptable to Wife.
The following day, October 2, 2013, Wife continued her direct examination.
Because the record on appeal does not contain a reporter's transcript of the October 2, 2013 proceedings, we have relied on the family court's register of actions.
The next morning, October 3, 2013, the family court granted Husband's request for judicial notice (of five documents from the bankruptcy court), and Husband's counsel began his cross-examination of Wife. During the cross-examination, the court allowed Husband to mark exhibits, to question the witness regarding the exhibits, and to move the exhibits into evidence. Indicating that Husband would be allowed to introduce further documentary evidence, the court asked Husband's attorney to premark all further exhibits and to provide copies to Wife's counsel.
During the afternoon session on October 3, 2013, Wife remained on the witness stand for further cross-examination, followed by redirect examination and recross-examination. Wife rested her case, and to begin his rebuttal case, Husband testified. Among other topics, Husband testified as to the two dates of separation on his Petition, as well as confirming July 1, 2001, as the stipulated date of separation that the court had approved more than four years earlier in 2009. Husband continued to identify exhibits for identification and to move their admission into evidence.
On the morning of October 4, 2013, Husband's counsel asked for a continuance of the trial on the basis that Husband's mother "has a medical issue." The family court found good cause and continued the trial for six days.
When trial proceeded on the morning of October 10, 2013, the court approved a procedure that the attorneys had agreed to in order to expedite the remainder of Husband's rebuttal case: Rather than continuing with Husband's testimony, Husband's attorney would make an offer of proof as to Husband's testimony, after which Wife's attorney could accept or reject the offer and then present objections. The parties followed this procedure for the remainder of the morning and most of the afternoon. Under this procedure, (1) Husband's counsel offered proof on at least 10 separate topics related to properties (real and personal), accounts, payments, credits, expert's report, attorney fees, penalties, Husband's bankruptcy, etc., (2) Wife's counsel accepted each offer of proof, (3) Wife's counsel presented objections to certain of the offers of proof, and (4) the family court ruled on most of Wife's objections, taking a few under submission. After Husband rested his rebuttal case, Wife began but then withdrew her surrebuttal presentation.
In both briefs on appeal, Husband misrepresents the record by stating that, during the 2013 trial, the family court did not allow Husband to submit evidence. To the contrary, at the trial, in addition to examining witnesses and successfully obtaining judicial notice of documents, Husband identified 38 exhibits, Husband asked that the family court admit into evidence 19 of these exhibits, and the court received four exhibits and rejected 15 exhibits. In contrast, Wife identified nine exhibits, and the family court received one into evidence.
The court requested written closing arguments, both opening and responsive, and set a hearing in early December 2013. Wife filed her written closing argument; at the hearing, Husband's counsel confirmed that he had not filed anything and expressly waived closing argument; and Wife submitted the matter without further comment.
The family court issued a proposed statement of decision, which became the final statement of decision when no party filed an objection. On June 16, 2014, the court filed a judgment on further reserved issues (2014 Judgment). Neither party appealed from the 2014 Judgment.
Husband acknowledges that he did not object to the proposed statement of decision before it became final, telling us that "it was impossible or futile for [him] to object because he was not allowed to submit any documents." Husband again misrepresents the record: By the time the family court issued its proposed statement of decision, Husband had participated at trial, and the court had already allowed Husband to mark and identify 38 trial exhibits (and to move 19 into evidence — of which the court received four) and to submit a written closing argument. Like his failure to submit a closing argument, Husband's failure to submit objections to the proposed statement of decision was a voluntary decision on his part — not a basis on which to claim impossibility or futility or to suggest unfairness.
In January 2015, exactly six months after the notice of entry of the 2014 Judgment, Husband filed a request for an order setting aside the 2014 Judgment (previously identified as the RFO). He included a memorandum of points and authorities and declarations from himself and from trial counsel, who had prepared and filed the RFO. The RFO was based solely on section 473. As relevant to the issue on appeal, Husband argued that the 2014 Judgment should be set aside because the 2014 Judgment was (1) procured by fraud (§ 473, subd. (d) (§ 473(d)), and (2) the result of Husband's "mistake, inadvertence, surprise, or excusable neglect" (§ 473, subd. (b) (§ 473(b)). Other than Wife's objection to and disagreement with the RFO, the record on appeal does not contain a substantive responsive declaration or other opposition to the RFO.
At the hearing on the RFO, Wife's counsel referred to a written response, but the record on appeal does not contain one, and the register of actions does not identify one.
At the April 2015 hearing on Husband's RFO, Husband (who at the time was representing himself) orally argued that his trial attorney had been negligent, as evidenced by the attorney's declaration that accompanied the RFO. Wife's counsel commented only that the RFO did not raise attorney negligence as a basis for setting aside the 2014 Judgment. The family court denied the RFO, stating:
"The motion to set aside the judgment is going to be denied. I think your interests were impacted perhaps, but I think you and your attorney participated in that. The orders [contained in the March 2013 Sanctions Order] . . . limiting your ability to put on evidence were valid orders and were appropriate to be made under the circumstances. A trial proceeded. You and your attorney participated, and the Court has made its rulings."After ruling, the court allowed Husband to read into the record and to file what Husband called a "declaration" that he had prepared. In that statement/document, Husband repeated the same objections from the 2013 trial that resulted in the 2014 Judgment (from which there was no appeal) — which are the same as what Husband characterizes as fraud, perjury, lies, and "false evidence" in this appeal. (See fn. 24, post.) At the conclusion of the reading, the court reaffirmed its ruling, stating:
"Every issue that you brought up [in your statement] I believe was covered in the course of the trial. . . . This case went on forever and should not have. . . . You had an opportunity to be heard, to participate. You chose not to. The loss occasioned is on your shoulders, and the Court does deny the request to vacate the judgment."
Husband's statement lacks the certification or declaration under penalty of perjury that is required by section 2015.5. Thus, the statement is "not deemed sufficiently reliable" and "cannot be used as evidence." (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 611, 618.) Even though the family court "listen[ed] to" and filed the statement, like the argument of counsel, the unsworn statement of a self-represented party is not evidence. (See Zeth S., supra, 31 Cal.4th at p. 413, fn. 11)
The family court's minute order from the April 29, 2015 hearing reflects the denial of Husband's RFO (2015 Order). Husband timely appealed from the 2015 Order.
III.
DISCUSSION
In the RFO, Husband sought relief — namely to set aside the 2014 Judgment — under sections 473(d) and 473(b). "The standard for appellate review of an order denying a motion to set aside under section 473 is quite limited." (In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 118 (Marriage of King).) "In reviewing the evidence in support of a section 473 motion, we extend all legitimate and reasonable inferences to uphold the judgment. The disposition of such a motion rests largely in the discretion of the trial court, and its decision will not be disturbed on appeal unless there has been a clear abuse of discretion." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 597-598, italics added; accord, Marriage of King, at p. 118.) The applicable test for an abuse of discretion under section 473 is " ' " 'whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Marriage of King, at p. 118, quoting Walker v. Superior Court (1991) 53 Cal.3d 257, 272 (Walker).)
The 2015 Order is presumed correct, and Husband (as the appellant) has the burden of establishing reversible error. (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1398 (Generale Bank Nederland) [under § 473]; In re Marriage of Khera and Sameer (2012) 206 Cal.App.4th 1467, 1484.) A. Only Issues and Arguments Under Section 473 Are Properly Before the Court
Husband's opening brief does not present a cogent legal argument, based on the record and legal authorities, that would allow for appellate review of the 2015 Order. (See Rule 8.204(a)(1)(B)-(C) & (a)(2)(C).) However, in considering Husband's RFO and his reply brief on appeal, we understand his argument to be that the family court erred in denying his RFO.
Husband's trial counsel filed the RFO; a different attorney filed the reply brief on appeal; and, representing himself, Husband filed the opening brief on appeal. While Husband's self-represented status no doubt contributed to the deficiencies in the briefing, it does not excuse them; the appellate rules apply the same to a self-represented party as to a represented party. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Contrary to much of Husband's presentation on appeal, we are not reviewing the 2014 Judgment (or any judgment or order other than the 2015 Order). That is because Husband did not appeal from the 2014 Judgment (or from any judgment or order other than the 2015 Order), and without a proper notice of appeal, the appellate court lacks jurisdiction to review an otherwise appealable order or judgment. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Thus, for purposes of the present appeal, the orders establishing the date of separation (based on the parties' 2009 stipulation) and the sanction for failing to comply with a pretrial order are final and not subject to challenge.
Additionally, as in Marriage of King, supra, 80 Cal.App.4th 92, we are not considering Husband's arguments on appeal based on Family Code section 2120 et seq., because Husband did not base his RFO on (or even mention) remedies under the Family Code. (See id. at pp. 110-111.) Family Code section 2122 provides that a party to a proceeding for dissolution of marriage may bring a motion to set aside a judgment based on "[a]ctual fraud" — i.e., "where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding." (Id., subd. (a).) As in the present appeal, in Marriage of King the appellant moved to set aside the judgment under section 473 based on fraud, but on appeal attempted to apply the provisions of Family Code section 2120, et seq. (Marriage of King, supra, 80 Cal.App.4th at p. 110.) Thus, applying the reasoning and ruling in Marriage of King, the result will be the same here: "[H]aving chosen to file h[is RFO] motion in the trial court under section 473 and base all h[is] arguments below upon that provision, appellant should not at this late date be permitted to change the entire basis of h[is RFO] because in hindsight it now seems expedient for h[im] to do so." (Marriage of King, at p. 110; see generally In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 695 [theories not raised in the trial court cannot be asserted for the first time on appeal].)
Finally, we do not consider Husband's claim on appeal that, because the trial judge was prejudiced against him, he is entitled to a new trial. Husband forfeited any right he may have had for appellate review of such an issue by not stating — with record references — exactly what statements or actions of the trial judge may have exhibited bias or prejudice. (Rule 8.204(a)(1)(C) & (a)(2)(C).) In any event, based on our independent review of the record (see pt. I., ante), there is no indication of any bias or prejudice by the trial judge, and Husband's suggestion otherwise borders on the frivolous. B. Husband Did Not Meet His Burden of Establishing That the Family Court Erred
On appeal, Husband does not differentiate between subdivisions (d) and (b) of section 473. Instead, he tells us that, because the 2014 Judgment "was obtained by fraud," the family court erred in not setting it aside under section 473. In doing so, Husband does not discuss what fraud is — either as a legal concept generally or in the context of his section 473 proceeding specifically — or how he or the family court was defrauded in relation to the 2014 Judgment. Instead, Husband argues on appeal only that "[Wife] and her legal team have jointly engaged in fraud, misconduct, and perjured testimony" without ever having presented in the RFO any evidence of fraud, misconduct, or perjured testimony.
1. Husband Did Not Meet His Burden of Establishing That the Trial Court Abused its Discretion in Denying Relief Under Section 473(d)
Section 473(d) provides in part: "The court may, . . . on motion of either party after notice to the other party, set aside any void judgment or order." (Italics added.) Husband's reliance on section 473(d) is misplaced. As a matter of law, section 473(d) applies only to void judgments; and as we explain, the 2014 Judgment is not void, but at best merely voidable.
"A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable." (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56 (Marriage of Goddard), italics added.) When a court lacks jurisdiction in a fundamental sense, any resulting judgment is void and subject to " ' "direct or collateral attack at any time" ' " (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660) — including under section 473(d). Once a court has established its power to hear a case, however, the errors it may make with respect to areas of procedure, pleading, evidence, and substantive law do not result in a void judgment. (Marriage of Goddard, supra, 33 Cal.4th at p. 56.)
As one respected treatise describes this distinction: "Where . . . the judgment is not void on its face . . . and the defect consists only of an act in excess of the court's jurisdiction (rather than a complete absence of subject matter or personal jurisdiction), it is valid until set aside"; i.e., it is voidable, not void. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2017) ¶ 16:195b, p. 16-70.) Stated differently, a judgment is "void on its face" only where its invalidity is apparent upon inspection of the judgment roll — i.e., where the defect is apparent without relying on extrinsic evidence. (Ibid.; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2017) ¶ 18:509.1, p. 18-143.)
An error is jurisdictional " ' "only where the clear purpose of the [remedy for the error] is to restrict or limit the power of the court to act and where the effective enforcement of such restrictions requires the use of extraordinary writs of certiorari or prohibition." ' " (Marriage of Goddard, supra, 33 Cal.4th at p. 57.) There is no such " ' "clear purpose" ' " in allowing the set-aside of a judgment obtained as a result of fraud. Such a judgment is voidable, not void.
Significantly, in neither the family court nor on appeal has Husband suggested that the family court lacked either personal or subject matter jurisdiction. Indeed, indirectly acknowledging the appropriate standard, in his RFO Husband expressly argued that, because "the [2014 J]udgment was procured by fraud" it "may be voided." (Italics added; underscore omitted.) Consistently, in his opening brief on appeal, Husband tells us that his appeal is based on extrinsic evidence, thereby acknowledging that the 2014 Judgment is not void on its face — and, impliedly, merely voidable upon a sufficient showing.
Husband's error is in suggesting that section 473(d) provides a statutory basis on which to void the 2014 Judgment. Even if we assume that Husband had conclusively established the fraud of which he complains (see fn. 24, post), section 473(d) does not offer Husband any relief, because section 473(d) applies only to void, not merely voidable, judgments.
On this record, we are satisfied that the superior court had jurisdiction — over both subject matter (i.e., the dissolution of the parties' marriage) and both parties. Thus, the 2014 Judgment is not void, and because the 2014 Judgment is not void, the set-aside provision in section 473(d) does not apply.
For these reasons, the family court did not abuse its discretion in denying relief under section 473(d).
2. Husband Did Not Meet His Burden of Establishing That the Trial Court Abused its Discretion in Denying Relief Under Section 473(b)
Section 473(b) provides in part: "The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." Here, Husband based his RFO on his trial attorney's lack of preparation, relying on: (1) the reporter's transcript from the 2013 trial; and (2) a declaration from his trial attorney in which counsel testified that he "was not ready to proceed" when trial was called.
The statute further provides that, when a party's section 473(b) set-aside request "is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect," the court "shall . . . vacate any (1) resulting default . . . which will result in entry of a default judgment, or (2) resulting default judgment or dismissal . . . ." (§ 473(b), italics added.) Although Husband relies on his trial attorney's declaration in arguing that the trial attorney was negligent, Husband does not seek relief under section 473(b)'s mandatory provision, acknowledging that this case does not involve a default or default judgment or dismissal. (See English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 137-149; Hossain v. Hossain (2007) 157 Cal.App.4th 454, 457-459 [disapproving earlier cases with different result]; Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 998-1001 [same].)
In his reply brief on appeal, Husband's appellate counsel tells us that Husband "provided his trial counsel with his documents, fully participated in preparing for the trial and had no warning that trial counsel would be unprepared when the trial came." However, we do not consider this statement, because it is the argument of counsel, not evidence. (Zeth S., supra, 31 Cal.4th at p. 413, fn. 11); Moreover, the record on appeal contains no such evidence — By this last comment, we do not imply that, had Husband presented such evidence, the result — either in the family court or on appeal — would be different.)
A party like Husband who seeks relief from a judgment based on his attorney's mistake, inadvertence or neglect must demonstrate that it was excusable, because otherwise " 'the negligence of the attorney is imputed to his client and may not be offered by the latter as a basis for relief.' " (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258, quoting Generale Bank Nederland, supra, 61 Cal.App.4th at p. 1399.) To constitute acceptable grounds for relief, the press of business or an exceptional caseload generally must be accompanied by some factor outside of the attorney's control that makes the situation unmanageable. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1424.) Additionally, the court is to consider " 'whether counsel was otherwise diligent in investigating and pursuing the claim.' " (Generale Bank Nederland, at p. 1401.) Before ruling that the attorney's neglect was excusable, the court must find that " ' "a reasonably prudent person under the same or similar circumstances" might have made the same error' " — i.e., a "mistake that could have been made by anybody," not just by a lawyer. (Zamora, at pp. 258, 259; see, e.g., id at pp. 252, 259 [typographical error by a legal assistant in an offer of compromise that the opposing party accepted]; Downing v. Klondike Mining & Milling Co. (1913) 165 Cal. 786, 788 [papers misplaced "through the mistake of a clerk"]; Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 275-276 [attorney timely prepared pleading, but attorney's secretary lost it].)
In denying the RFO here, the family court necessarily found that Husband's showing was insufficient; that is to say, Husband did not meet his burden of showing inadvertence or excusable neglect under the standard set forth in the preceding paragraph. For our purposes on appeal, it makes no difference whether the court found trial counsel's lack of preparation inexcusable, whether the court found counsel was not diligent, or whether the court disbelieved the reasons offered by counsel for his lack of preparation. Very simply, given that multiple inferences can reasonably be deduced from Husband's factual showing, as the reviewing court we may not substitute our decision for that of the family court. (Walker, supra, 53 Cal.3d at p. 272; Marriage of King, supra, 80 Cal.App.4th at p. 118.) Husband did not attempt to show, and on appeal does not argue, that he established as a matter of law an entitlement to relief under section 473(b); instead, he asks us to believe his version of the events (some based on evidence and most based on unsubstantiated argument) and to ignore the standard of review that we must apply. Since Husband's showing on appeal at best "presents a state of facts which simply affords an opportunity for a difference of opinion," Husband's showing is insufficient to establish an abuse of discretion. (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682; see Walker, at p. 272; Marriage of King, at p. 118.)
In his reply brief on appeal, Husband suggests that the family court abused its discretion by reaching a decision after reciting from the bench a "misstatement of case history." Such a suggestion demonstrates a misunderstanding of basic appellate law. Because we review the family court's ruling, not its reasoning, "oral remarks or comments made by a trial court may not be used to attack a subsequently entered order or judgment." (Transport Ins. Co. v. TIG Ins. Co. (2012) 202 Cal.App.4th 984, 1009.) In determining whether the family court exceeded the bounds of reason (Walker, supra, 53 Cal.3d at p. 272; Marriage of King, supra, 80 Cal.App.4th at p. 118), we consider only whether the record contains substantial evidence in support of the exercise of discretion actually made, not the existence or strength of the evidence in support of a different ruling (see Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631).
Husband's briefs on appeal can be read to suggest that the trial court erred in not providing relief under section 473(b) based on the various acts that Husband characterizes as "fraud." That argument fails for a number of reasons. First, in the family court, Husband sought relief under section 473(b) solely based on "mistake, inadvertence, surprise, or excusable neglect"; Husband did not mention fraud in conjunction with section 473(b). In doing so, Husband forfeited appellate review of his new argument, because " ' "theories not raised in the trial court cannot be asserted for the first time on appeal; appealing parties must adhere to the theory (or theories) on which their cases were tried." ' " (In re Marriage of Nassimi, supra, 3 Cal.App.5th at p. 695.) Second, section 473(b) refers only to "mistake, inadvertence, surprise, or excusable neglect," and Husband does not suggest how the alleged fraud involved mistake, inadvertence, surprise, or excusable neglect. Third, other than the alteration of the 2001 Petition, Husband did not submit any evidence of alleged fraud in support of his RFO, and without such evidence there could be no finding(s) of fraud regardless of the severity of Husband's claims. To the extent Husband asks this court to review evidence and find fraud in the first instance, "appellate courts do not make new or additional findings for the purpose of reversal except in rare instances (of which this is not one) and never for the purpose of reviewing conflicting evidence." (Altadena Escrow Corp. v. Beebe (1960) 181 Cal.App.2d 743, 746 (Altadena Escrow Corp.); Zeth S., supra, 31 Cal.4th at p. 405.) Fourth, even if we were to credit Husband's unsupported claims of fraud, other than the alteration of the 2001 Petition, all of the allegedly fraudulent acts, events, and statements involve nothing more that Husband's disagreement with Wife's version of disputed facts. A ruling against Husband does not mean that Wife or her attorney committed perjury or defrauded the court, and to suggest such a conclusion — especially on this record, where Husband failed to present evidence of fraud to the family court in support of his the RFO — borders on the frivolous.
As we explained at part III.B.1., ante, the alleged fraud is not a basis on which relief could be granted under section 473(d).
According to Husband's presentations in both courts — in the family court (counsel represented Husband), in his opening brief on appeal (Husband represented himself), and in his reply brief on appeal (counsel represented Husband) — the 2014 Judgment was obtained as a result of alleged fraud related to the following acts or events: (1) alteration of the date of separation on the 2001 Petition after Husband filed the petition; (2) real property located at 432 N. Riverside in Rialto sold for less than fair market value; (3) title to the real property located at 421 Riverside in Rialto obtained by Wife and her attorney; (4) undescribed "fraudulent claims" by Wife for child support and spousal support; and (5) failure to address Husband's claims for credits and reimbursements. Further, as part of, or in addition to, the foregoing allegedly fraudulent acts or events, Husband's presentations contain numerous references to perjured testimony, lies, and "false evidence." Even if we were to consider these acts, events, and statements, however, none suggests or is evidence of fraud — the only basis on which Husband sought relief in his RFO.
For the reasons explained in the text, post, we will deny Husband's motion for judicial notice.
With regard to the alteration of the 2001 Petition, even if we assume that fraud was involved, Husband is judicially estopped from relying on it. More than three years after Husband first raised the issue of the allegedly altered petition during the January 2006 trial concerning the Highland Property — i.e., at a time when Husband knew of the alleged alteration — in 2009 in open court with Husband present, the parties stipulated to a July 1, 2001 date of separation. Moreover, there is no indication that, during the 2013 trial, the family court based any decision on the (allegedly fraudulent) date of separation contained in Husband's 2001 Petition. To the contrary, during the 2013 trial, the family court expressly recognized that, to the extent the date of separation was an issue, the court would be relying on the parties' 2009 stipulation (to a July 1, 2001 date of separation).
Finally, Husband suggests that fraud was involved when "[Wife] and her legal team's actions successfully prevented [Husband's] ability to fully participate in the [trial] proceedings" or "[b]ecause [Husband] was prevented the opportunity to present evidence at trial." However, any limitation to Husband's participation at the 2013 trial was the direct and sole result of the March 2013 Sanctions Order in which the family court — not Wife or her attorney — precluded Husband from presenting an affirmative case, from filing an exhibit list, and from calling witnesses. Husband only (and perhaps his attorneys, if he had any; we express no opinion) is responsible for the sanctions that limited the extent of his participation in the 2013 trial.
In fact, however, as described in the text, ante, Husband and his attorney were not only given the opportunity to participate fully at the trial to the extent allowed by the March 2013 Sanctions Order, but actually were permitted to participate more than allowed by the order. Husband continues to misrepresent the record when telling us that he was prevented from participating in, or from presenting evidence at, the trial.
In any event, Husband's showing on appeal — whether as excusable neglect or fraud — fails as a matter of law, because he has not attempted to show, let alone established, prejudice by the denial of the RFO. Prejudice is never presumed (§ 475), and the appellant bears the burden of establishing not only error, but also how the error caused a miscarriage of justice (Cal. Const., art. VI, § 13) — i.e., how it is reasonably probable that, but for the error, the appellant would have received a more favorable result. (In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 822-823.) Husband did not attempt to show, for example, what he might have established had there been no excusable neglect (e.g., had his trial attorney been better prepared).
For these reasons, the family court did not abuse its discretion in denying relief under section 473(b).
Husband asks that we take judicial notice of 65 exhibits filed with the Court of Appeal in In re Marriage of Ortola, case No. E066350. (Rule 8.252(a).) We have reviewed each of the 65 exhibits, none of which Husband presented to the family court in support of the RFO. They include copies of pleadings, reporter's transcripts, court orders, and various documents (real property valuations, letters, deeds, deeds of trust, and bank statements). Given the above-described reasons for our ruling that the family court did not err in denying Husband's RFO under section 473(b), judicial notice of the 65 exhibits would not affect our conclusion, because: (1) we review decisions of the family court based on what was before the court at the time it made its ruling(s) on appeal (Zeth S., supra, 31 Cal.4th at p. 405); and (2) Husband does not offer the exhibits to suggest that the family court abused its of discretion in denying the RFO, but rather to establish either (a) error related to the 2014 Judgment (which includes the 2014 statement of decision) — an issue that is not before us, or (b) the existence of fraud based on findings that we would make in the first instance — a procedure that is available only in extraordinary circumstances not present here (Altadena Escrow Corp., supra, 181 Cal.App.2d at p. 746). Accordingly, the exhibits in question are irrelevant to the issues on review (see Mangini, supra, 7 Cal.4th at p. 1063) and, accordingly, we deny Husband's request that we judicially notice them.
In any event, Husband cannot rely on these exhibits to establish either erroneous statements of fact (by the family court or Wife) or the existence of fraud. The taking of judicial notice of the existence of the exhibits does not include notice of the truth of the matters stated in the exhibits. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063-1064 (Mangini), overruled on other grounds by In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) --------
DISPOSITION
The 2015 Order is affirmed. Wife is entitled to costs on appeal. (Rule 8.278(a)(2).)
IRION, J. WE CONCUR: HUFFMAN, Acting P. J. DATO, J.