Filed 1/2/18 Airlines Reporting Corp. v. Ghabbour CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


AIRLINES REPORTING CORPORATION,

Plaintiff and Respondent,

v.

EDWARD GHABBOUR,

Defendant and Appellant.


G053615

(Super. Ct. No. 30-2013-00648194)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Ronald Lawrence Bauer, Judge. Affirmed.
Edward Ghabbour, in pro. per., for Defendant and Appellant.
Omrani Law and Sepehr Omrani for Plaintiff and Respondent.

* * *

Defendant Edward Ghabbour suffered a judgment in Virginia. Plaintiff Airlines Reporting Corporation (ARC) domesticated the judgment in California. Ghabbour moved to vacate it. The court denied the motion. In a prior opinion, we reversed in part and instructed the court to set a hearing to consider Ghabbour’s claim that the Virginia judgment was obtained by extrinsic fraud.
On remand, the court set a hearing for December 2015 to discuss the procedure for resolving that issue. The parties were each to submit a brief 10 days before the hearing. Ghabbour was properly served by mail at his address in Anaheim, but failed to file a brief or appear. The court set a hearing on the merits for February 29, 2016, and ordered ARC’s attorney to give notice and provide a briefing schedule.
ARC’s attorney filed a proper notice, but attached the wrong proof of service. In particular, ARC’s attorney attached a proof of service for the brief filed prior to the December hearing, rather than the notice ordered at the hearing. The notice is entitled “Notice of Hearing Re: Defendant’s Claim of Extrinsic Fraud in Procuring the Virginia Judgment” and is dated December 10, 2015. The proof of service, by contrast, identifies the document title as “Plaintiff’s Statement Re: How and When to Resolve Issue of Whether or Not Their [sic] Was Extrinsic Fraud in Procuring the Virginia Judgment” and is dated November 20, 2015.
On February 11, 2016, ARC filed a declaration by its attorney regarding “Defendant Edward Ghabbour’s Failure to File a Brief; and Request that Plaintiff’s Judgment be Confirmed.” This document identified the date, time, and location of the hearing in three different places. It also described the procedural history up to that point. ARC’s counsel declared that he served Ghabbour with the notice of hearing on December 9, but does not say how or where service was accomplished. The declaration was properly served by mail on Ghabbour.
At the February 29, 2016 hearing, Ghabbour failed to appear. The court took the matter off calendar and determined “that the judgment stands as the defendant has [failed] to prove his defense.” ARC’s counsel was ordered to give notice. However, there is no proof of service in the record, and thus no indication Ghabbour was ever served with this order.
On June 1, 2016, Ghabbour filed the notice of appeal in this proceeding. In the 10-page document, Ghabbour explained he was out of the country for seven months beginning in August 2015 due to a number of health problems, including a stroke, severe depression, a heart problem, and high blood pressure. He claimed to have first become aware of the case management conference on April 11, 2016, when he returned to the country, and of the subsequent proceedings on May 26, 2016, when he obtained the Superior Court file. He claimed ARC’s counsel was aware of his absence due to illness. However, there is nothing in the record to confirm that claim, nor is there any indication that he gave the court notice of his changed address. Ghabbour’s opening brief on appeal repeated his claims and attached his plane tickets and some medical records as evidence to support his absence and illness.
Unfortunately, Ghabbour did not file a motion for relief from default under Code of Civil Procedure section 473, where he could have brought this evidence before the trial court. While we are sympathetic to Ghabbour’s status in propria persona, we cannot sidestep the fundamental rule of appellate procedure that we consider only what was before the trial court. (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632 [“As a general rule, documents not before the trial court cannot be included as part of the record on appeal and thus must be disregarded as beyond the scope of appellate review”]; Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267 [“‘“the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation]”’”].) Because the evidence concerning Ghabbour’s absence from the country was not before the trial court, we cannot consider it as a basis for reversal.
The question remains, however, whether Ghabbour was afforded adequate and timely notice of the hearing on his extrinsic fraud claim. Neither party has addressed this specific issue. We conclude notice was inadequate, but the error was harmless.
The purpose of the February 29 hearing was to consider “defendant’s Motion to Show Fraud.” Whether that is regarded as a motion to vacate the domesticated judgment pursuant to Code of Civil Procedure section 1710.40, or simply an application to vacate the judgment based on the court’s equitable power to set aside judgments obtained by extrinsic fraud, there is no statutory minimum notice time. In the absence of a statutory guideline, Code of Civil Procedure section 1005, subdivision (b) applies. It states, “Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court. However, if the notice is served by mail, the required 16-day period of notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California . . . .”
The present situation is somewhat unusual since it was Ghabbour’s motion being put back on calendar. Nonetheless, the statute clearly requires a “16-day period of notice before the hearing,” plus five days for mail, and the court ordered ARC to give notice.
The notice of hearing on file with the court would have been timely and adequate if we had proof it was served. But we do not. The only document giving adequate notice for which we have a proof of service was ARC’s counsel’s declaration, served on February 11, 2016. That declaration contained sufficient information to apprise Ghabbour of the hearing, but it was served 18 calendar days before the hearing, rather than 16 court days, plus five calendar days for the mailing. Thus it was untimely, and the court should have postponed the hearing to a later date.
Nonetheless, we conclude the error was harmless for two reasons. First, Ghabbour admitted he was out of the country and that he first learned about the developments in his case when he returned in April 2016. Thus, it would have made no difference at all if the notice of hearing had been mailed to him in December 2015. Second, Ghabbour can simply bring the motion again at a later date. A motion to vacate a judgment based on extrinsic fraud can be brought at any time. (In re Estate of Estrem (1940) 16 Cal.2d 563, 571 [“a judgment could be attacked at any time either by motion or in an independent action in equity on the ground that it was secured by extrinsic fraud”]; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 749 [“the court has inherent equitable power to set aside a default judgment at any time for extrinsic fraud or mistake”]; Cal. Judges Benchbook: Civil Proceedings After Trial (CJER 2017) Time for Filing Motion, § 3.52, p. 264 [“In general, a motion for relief from a judgment based on extrinsic fraud or mistake may be filed at any time, long after the time for appeal, new trial, or other statutory means for review has expired, such as the six-month time limit for a motion under” Code of Civ. Proc., § 473, subd. (b)].) And since the court never ruled on Ghabbour’s motion — it merely took the motion off calendar — neither timeliness nor res judicata would preclude Ghabbour from simply bringing the motion again at a later date.

DISPOSITION

The order is affirmed. The parties shall bear their own costs incurred on appeal.


IKOLA, J.

WE CONCUR:



FYBEL, ACTING P. J.



THOMPSON, J.