Filed 1/8/18 Harm v. Hetman 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


JAMES MICHAEL HARM et al.,

Plaintiffs and Respondents,

v.

WAYNE T. HETMAN,

Defendant and Appellant.


G052336

(Super. Ct. No. 06CC03911)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Franz E. Miller, Judge. Affirmed. Motion to augment the record denied.
Wayne T. Hetman, in pro. per., for Defendant and Appellant.
Law Offices of Richard A. Jones, Richard A. Jones and Jarrick S. Goldhamer for Plaintiffs and Respondents.
* * *


Wayne T. Hetman appeals from an order denying his second motion for a new trial – a motion he filed five and a half years after entry of the judgment in favor of James Michael Harm and Soraya Maria Harm (Soraya) (collectively, the Harms) in this case, and more than seven years after his first motion for new trial was denied. Because the trial court had long since lost jurisdiction to grant such a motion, we find no error in its refusal to do so.
Hetman’s opening brief is little more than an extended factual disquisition, albeit one supported by few citations to the record. But in a nutshell, what he asks us to decide is “whether the judgment in this action can be vacated or reopened for a new hearing for any reason.” More specifically, Hetman argues that evidence of the Harms’ misconduct in the wake of the judgment they obtained against him – which misconduct was itself the basis for his successful subsequent lawsuit against them – should somehow also entitle him to relief from that judgment. His argument fails for at least two reasons. First, because the Harms’ judgment against Hetman is final, there is only one ground upon which it could have been challenged: extrinsic fraud. Hetman has made no showing that the Harms obtained their judgment through extrinsic fraud.
Second, whatever relief Hetman may have been entitled to as a consequence of the misconduct he alleged against the Harms in the second lawsuit, was required to be obtained in that second lawsuit. Hetman waived whatever remedy he did not seek in that case.
Ultimately, there is no inconsistency between the judgment obtained by the Harms in this case, and the one obtained by Hetman in the second one. The two cases involve different events and issues. It was for the jury in each case to determine the credibility of the testimony and evidence presented to it, and the second jury has no power to implicitly overrule the first. Thus, the fact Hetman prevailed in the second case cannot be relied upon as a basis for questioning the result in this one.
The order is affirmed.
I
FACTS
Hetman and the Harms are former neighbors. They have been engaged in litigation against each other since March 2006, when the Harms filed their complaint against Hetman in this case. The case went to trial in July 2007 and the jury rendered a special verdict, almost entirely in favor of the Harms, in August 2007.
The jury found Hetman had committed slander of title, negligence, intentional infliction of emotional distress, and nuisance against the Harms. The jury also exonerated Soraya on Hetman’s slander claim, finding that her assertion Hetman had “tried to run down [her] and her son with his car” was substantially true. However, the jury also found facts that entitled Hetman to a prescriptive easement over a narrow strip of the Harms’ land, where he had maintained a retaining wall for over five years.
The jury awarded both compensatory and punitive damages to the Harms, and the trial court issued a permanent restraining order against Hetman, and in favor of the Harms. The court also quieted title in favor of Hetman to the extent of his prescriptive easement over the Harms’ strip of land, and quieted title in favor of the Harms to a disputed “slope/planter area.”
Hetman filed a motion for new trial, and in February 2008, the trial court conditionally granted that motion in part. The court ruled that the amount of punitive damages awarded by the jury had been excessive, and ordered the case be retried “unless plaintiffs agree to accept the sum of $75,000 in punitive damages.” We substantially affirmed that judgment on appeal in June 2009, but remanded the case to the trial court with directions to make minor changes. (Harm et al. v. Hetman (June 25, 2009, G039955) [nonpub. opn.].)
After the trial court modified the judgment on remand, judgment was entered in November 2009. Notice of entry of that judgment was served on December 4, 2009.
On May 1, 2015 – more than five years after notice of entry of judgment – Hetman filed a second motion for new trial. His notice of motion reveals he set the hearing on that motion or for July 1, 2015, which is 61 days after he filed his notice of motion. In his motion, Hetman argued he was entitled to a new trial because the Harms’ “fraudulent concealment” prevented him “from alleging all possible defenses to the charges brought by the [Harms]. . . result[ing] in an unfair trial.”
More specifically, Hetman contended in his motion that Soraya had perjured herself in the course of the litigation by concocting “an elaborate story . . . that revolved around several incidents of automobile harassment.” He claimed that her alleged perjury was established when she subsequently offered inconsistent testimony during the second lawsuit between the parties, in which he had sued the Harms for “Deceitful Dealings.” Hetman argued that the evidence of the Harms’ fraudulent actions, established in the second lawsuit, “cast a whole new light upon the accusations against Hetman for which the instant judgment stands,” and thus demonstrated “an erroneous legal basis for the judgment.”
The trial court heard the motion on July 1, 2015, the date noticed by Hetman, and denied it. The court explained its reasoning as follows: “[Hetman’s] claims based on CCP §663 [motion to vacate judgment], §656 and §657 [both referring to a motion for new trial] fail because the power of the Court to grant expires 60 days after notice of entry of judgment (CCP §664.) Such notice was filed and served on 12/4/09.” The court nonetheless went on to explain that Hetman’s “claim based on extrinsic fraud fails because he attended [the] trial and had the opportunity to dispute the truth of Mrs. Harm’s testimony about the event(s) he challenges involving a white SUV Suburban. . . . [H]e alleges intrinsic fraud, not extrinsic fraud.” The court squarely rejected Hetman’s assertion that Soraya’s alleged perjury had prevented him from preparing his case: “His claim he was prevented by the alleged misinformation from finding witnesses fails because he does not show that he investigated and sought any witnesses. In fact, he admits he did not because he ‘relied’ on the testimony.”
The trial court also expressed its clear frustration with Hetman: “This case is long final. It is over. Defendant Hetman made his collateral attack, and it fails.” The court then gave Hetman explicit notice that “[a]ny further unsuccessful filings in this action will almost certainly result in serious consideration of substantial sanctions against him, on plaintiffs’ application and/or the court’s own motion.”
II
DISCUSSION
1. Deficiencies in Hetman’s Opening Brief and Record
Before we turn to the merits of the order before us, we address two procedural matters. First, California Rules of Court, rule 8.204(a)(2)(C), specifies that an appellant’s opening brief must “[p]rovide a summary of the significant facts limited to matters in the record.” (Italics added.) Moreover, all briefs must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(C).) Taken together, those rules require the appellant to support every fact stated in his brief with a citation to the record.
Hetman’s opening brief runs seriously afoul of this requirement. For example, the first 10 pages of the brief, which he characterizes as the “introduction,” purports to summarize the parties’ complicated litigation history, without including even a single citation to the record before us. And although Hetman’s 12-page “background of relevant facts” (capitalization omitted) contains roughly 30 citations to the record, it is largely comprised of conclusory and unsupported factual assertions – including this remarkable paragraph:
“Mrs. Harm changed her testimony in the underlying action. Mr. Harm admitted that it would be dishonest to tell the court that the judgment remained entirely unpaid, which is something that was shown that he did in an Affidavit to effect collection. Evidence came out about the claims for more money than was owed, including the over $700,000.00 claim seven months after the final judgment. With three different versions of how Hetman’s Fee Waiver from Judge Fell’s court was obtained by them, the Harms and their agents, could not explain how this came into their possession. At the time they first used this Confidential Court Record, it was kept by a paper copy, under seal at the Superior Court Clerk’s Office, in a brown envelope. It is a felony to remove the is 2 page Fee Waiver from the record under seal, copy it, and replace it back into the envelope, as the sign posted at the Clerk’s Office where the record was kept, informs and warns those checking out paper records. The Harms not only obtained a copy, they violated all codes related to Fee Waivers in the law, by using it in court pleadings without approaching the Court of Judge Fell, in which this particular Fee Waiver was filed and approved, to first ask for permission to view Hetman’s Fee Waiver, or to obtain her permission to publish it. Finally, the fact that James and Soraya conspired to commit identity theft against Hetman was heard. After a jury verdict in Hetman’s favor, and a Motion for Judgment Not Withstanding the Verdict and Motion for New Trial brought by the Harms, Judge Fell ruled to deny the motions, in the Minute Order of 2/04/2015. (CT, Vol. 1, pg. 159).”
That single record citation at the end of Hetman’s paragraph is to the minute order last referenced, which merely confirms that the motions described were denied in the case Hetman characterizes as the underlying action. But the approximately 18 other factual contentions made in that paragraph are wholly unsupported. We are not required to scour the record in search of support for Hetman’s factual claims, and we may disregard any that are not properly supported. (Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1149; Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 628 [“We disregard assertions and arguments that lack record references”].) Moreover, the fact Hetman is acting in propria persona does not alter that rule. Rather, “he must ‘be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.’” (Ibid.) Consequently, without belaboring the point, we will ignore all of Hetman’s factual assertions and arguments that are unsupported by citations to the record.
The second procedural issue is the Harms’ contention that this appeal should be “denied” on the basis Hetman failed to preserve an adequate record on appeal. The contention lacks merit.
The Harms’ argument focuses on the lack of a reporter’s transcript, documenting what was said during the hearing on Hetman’s motion for a new trial – the order he appealed from. They rely on California Rules of Court, rule 8.120(b), which states: “If an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court, the record on appeal must include a record of these oral proceedings . . . .” But the Harms make no effort to explain how Hetman’s appeal of the order denying his motion for a new trial would require our consideration of what was said at the hearing. Instead, they simply claim (without citation to the record) that “[Hetman] admits that the transcript of the oral proceedings is a necessary part of this record and included it in his designation of the record, despite knowing that no court reporter was present for the July 1, 2015 motion date.” That conclusory assertion establishes nothing.
The general rule is that a record of oral arguments is necessary only when a party claims that some relevant misconduct or error occurred during that argument. (See Worthington Corp. v. El Chicote Ranch Properties, Ltd. (1967) 255 Cal.App.2d 316, 320 [“‘If counsel desire to urge error in the oral argument it is essential that he order the argument included in the transcript. In the absence of such a record it must conclusively be presumed that no error in the argument occurred’”].) Hetman has made no such claim of error in this case. Nor does either side assert the trial court took evidence on any disputed issue during the hearing on Hetman’s motion for new trial. We consequently reject the Harms’ assertion that the resolution of this appeal requires our consideration of what was said during that hearing. It does not.

2. Limitations on Filing a Motion for New Trial
The first reason given by the trial court for denying Hetman’s motion was that the court lacked jurisdiction to grant relief. We agree.
Code of Civil Procedure section 659, subdivision (a)(2), requires that a party file any notice of intention to move for a new trial within 15 days of service upon him of a notice of entry of judgment, and if no such notice is given, “within 180 days after entry of judgment.” Those deadlines are mandatory, and jurisdictional. “[T]he trial court loses jurisdiction to hear a new trial motion if no notice of intent is filed within 15 days of the mailing or service of notice of entry of judgment, or within 180 days of the entry of the judgment.” (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 337.) In this case, the judgment was entered in November 2009, and Hetman was served with a notice of entry of judgment on December 4, 2009. Thus, by either measure, Hetman’s motion for new trial, filed more than five years later in May 2015, missed the mandatory deadline. On that basis alone, the trial court was required to deny it.
But even if the motion had been timely filed, the trial court’s power to rule on it would still have expired “60 days from and after service on the moving party by any party of written notice of entry of judgment.” (§ 660.) In this case, that means the court lacked the ability to rule on any motion for new trial – no matter when filed – after February 2, 2010. And finally, even if we ignore both that the judgment was entered and that notice of its entry was served more than five years before Hetman filed notice of his motion for new trial, the court’s power to rule on Hetman’s motion would still have expired 60 days after Hetman filed his notice. (§ 660 [“[I]f such notice [of entry of the judgment] has not theretofore been given, then [the power of the court to rule shall expire] 60 days after filing of the first notice of intention to move for a new trial”].) And because Hetman filed his notice of the new trial motion on May 1, 2015, that means the court’s power to rule would have expired on June 30, 2015 – one day before the hearing scheduled for July 1.
Again, the 60-day statutory deadlines are mandatory, and jurisdictional. (Siegal v. Superior Court of Los Angeles County (1968) 68 Cal.2d 97, 101.) Thus, the trial court lacks the authority to extend them for any reason, including “as an exercise of judicial discretion under the guise of mistake, inadvertence, surprise, or excusable neglect under section 473 or by means of a nunc pro tunc order.” (Jones v. Sieve (1988) 203 Cal.App.3d 359, 369.) Similarly, the 60-day deadlines for ruling “cannot be extended or expanded by the procedural device of moving under section 1008, a general statute, for reconsideration of an order granting or denying a new trial motion, which necessarily involves a request to correct judicial error.” (Id. at p. 370.) And if the trial court purports to rule on the motion beyond the 60-day time limit, its order is “void.” (Siegal v. Superior Court of Los Angeles County, supra, 68 Cal.2d at p. 101.)
Based on the foregoing, we conclude the trial court had no authority to grant Hetman’s motion for new trial on July 1, 2015. We consequently find no error in the court’s order denying that motion.

3. Collateral Attack on the Judgment
Even if Hetman’s motion were construed as a collateral attack on the judgment, rather than a direct attack via a motion for new trial, it was properly denied. Once a judgment is final, there is only one basis for attacking it: extrinsic fraud. “After relief is no longer available under Code of Civil Procedure section 473 for mistake, inadvertance, surprise or excusable neglect, an otherwise valid and final judgment may only be set aside if it has been obtained through extrinsic, not intrinsic, fraud.” (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1068.)
And “[t]he main requirement to establish extrinsic fraud is that the unsuccessful party was prevented by his adversary from presenting all of his case to the court.” (Caldwell v. Taylor (1933) 218 Cal. 471, 479; Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471, [“Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been ‘deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense’”].)
In this case, Hetman made no showing that he was kept in ignorance of the action – to the contrary he fully participated in the litigation, appeared at the trial, and testified. Instead, his complaint is that Soraya misrepresented and concealed facts, which “precluded [him] from informing the jury that Mrs. Harm did not own the white SUV in the alleged incidents.” This is a textbook assertion of intrinsic fraud, which has long been rejected as a basis for attacking a final judgment.
As our Supreme Court first stated in 1891, “[W]e think it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony. The reason of this rule is, that there must be an end of litigation; and when parties have once submitted a matter . . . for investigation and determination, and when they have exhausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive . . . . [¶] [W]hen [the aggrieved party] has a trial, he must be prepared to meet and expose perjury then and there. . . . The trial is his opportunity for making the truth appear. If, unfortunately, he fails, being overborne by perjured testimony, and if he likewise fails to show the injustice that has been done him on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy.” (Pico v. Cohn (1891) 91 Cal. 129, 133-134.) That rule has never changed. (See Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 10 [“After the time for seeking a new trial has expired and any appeals have been exhausted, a final judgment may not be directly attacked and set aside on the ground that evidence has been suppressed, concealed, or falsified; . . . such fraud is ‘intrinsic’ rather than ‘extrinsic’”].)
Thus, even assuming Soraya misrepresented facts relating to her ownership of a white SUV she claimed had been involved in incidents of Hetman’s wrongdoing, it was Hetman’s obligation to “meet and expose [her] perjury then and there.” (Pico v. Cohn, supra, 91 Cal. at p. 134.) Presumably he could have done so by seeking records relating to motor vehicle registration as part of the discovery process. What he cannot do is wait until years after the trial is finished, before challenging the veracity of testimony presented therein.
In ruling that Hetman is foreclosed from challenging the judgment based on Soraya’s alleged perjury, we do not mean to minimize the significance of such a claim. However, as cogently stated by our Supreme Court, the desire to offer redress for such wrongdoing must give way to the need for finality of judgments: “The wrong, in such case, is of course a most grievous one, and no doubt the legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischiefs far worse than the evil to be remedied. Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice . . . .” (Pico v. Cohn, supra, 91 Cal. at p. 134.)

4. Splitting a Cause of Action
Finally, we reject Hetman’s broader claim of an entitlement to relief from this judgment on the basis that the jury in the second lawsuit between these parties found the Harms had engaged in “Deceitful Dealings” against him. Hetman contends that finding of wrongdoing by the Harms establishes that he is the true victim in this drama, and “should allow him relief from the burden of the unfair judgment placed upon his shoulders.”
But even assuming Hetman might have been entitled to such relief – and we are by no means implying he is – he would have been required to seek it within that second lawsuit. “It is clearly established that a party may not split up a single cause of action and make it the basis of separate suits . . . .” (Wulfjen v. Dolton (1944) 24 Cal.2d 891, 894.) “A plaintiff is ‘bound to obtain all his relief . . . in one action, and could not recover part in one and part in another.’” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 906.)
Thus, if Hetman believed that the wrongful conduct he sued the Harms for in the second lawsuit might entitle him to also obtain relief from their judgment against him, he was required to seek that relief as part of the second lawsuit. His failure to do that precludes him from seeking that relief in a separate proceeding. (Boccardo v. Safeway Stores, Inc. (1982) 134 Cal.App.3d 1037, 1043 [the doctrine of res judicata “precludes relitigation of the same cause of action . . . for different relief”].)

III
DISPOSITION
The order is affirmed. The Harms are to recover their costs in this action.



MOORE, J.

WE CONCUR:



O’LEARY, P. J.



FYBEL, J.