In re Marriage of FLORA LINDA

Filed 9/28/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a post-judgment order of the Superior Court of Orange County, Frederick P. Aguirre, Judge. Affirmed.

Minyard & Morris and Ronald B. Funk for Appellant.

Gary S. Gorczyca for Respondent.

I. INTRODUCTION

The facts here, as found by the trial court, are extreme: In an ostensibly uncontested dissolution, the husband’s attorney literally palmed himself off to the trial court as the wife’s attorney, submitting papers in which he was listed as the wife’s attorney when he was really representing the husband.

In affirming the trial court’s decision to set aside the judgment, we will take our cue from Le Francois v. Goel (2005) 35 Cal.4th 1094. In that case, involving whether certain statutes could validly limit the authority of a court, acting on its own motion, to correct its own erroneous prior interim order, the court solved the problem by means of the canon that statutes will be interpreted, if possible, not to violate the constitution. (Id. at p. 1105.) In Le Francois, certain statutes could be read (indeed, had been read by a number of panels on the Court of Appeal) to infringe on the judiciary’s “‘core power to decide controversies between parties.’” (Id. at p. 1104, quoting Case v. Lazben Financial Co. (2002) 99 Cal.App.4th 172, 184.) But by distinguishing a party’s right to seek relief from the statutes from the trial court’s residual inherent power to correct interim orders on its own, the Le Francois court was able to reconcile the statutes with the inherent powers of the judiciary.

Likewise here we will uphold the trial court’s order setting aside a judgment procured through fraud directly against the court by holding that that the applicable statute does not impinge on the trial court’s residual inherent power to protect itself from fraud, a power impliedly recognized by the Legislature in section 128, subdivision (a)(8) of the Code of Civil Procedure [every court has power to control its “process and orders“ to make them “conform to law and justice”].) As we explain below, while Family Code section 2122 inhibits the right of parties to have family law judgments set aside after certain time limits have expired, by its terms it does not prohibit a court from setting aside a family law judgment procured directly through a fraud on it. Indeed, the order in this case was right because the court surely had the power to protect itself from the one kind of fraud that no legal system can tolerate: the identity theft that occurs when one party’s attorney impersonates the other party’s attorney.

II. HISTORY

A. The 2002 Uncontested Judgment

and Marital Settlement Agreement

This family law case began with a petition for dissolution filed in early February 2002, prepared by an attorney we shall call “Attorney V,” who was, at least ostensibly, representing the wife, Flora Linda Deffner.[1] The petition stated that while separate and community property had not yet been “determined,” all such assets would be disposed of in a “Marital Settlement Agreement.”

Three weeks later, in late February, husband Werner filed his own petition, as distinct from a “response.” Werner was ostensibly in pro per. A month later, in March 2002, Werner filed (again in pro per) a response to the wife’s petition. He filed an amended response three days later. Unlike the petition, the response and the amended response alluded to all community and separate property being disposed of by Marital Settlement Agreement.

In August 2002 Attorney V prepared an Appearance, Stipulation and Waivers form, basically stating that the matter could go uncontested, and also making the stipulation conditional on the court approving the marital settlement agreement. The form had Flora Linda signing as petitioner, Attorney V signing as attorney for petitioner, and Werner signing as both respondent and attorney for respondent.

About two months later, in October 2002, Werner submitted his income and expense declaration and Flora Linda submitted hers; Werner’s was in pro per; Flora Linda’s was again prepared on her behalf by Attorney V. Flora Linda signed the document herself. Along with the declaration Attorney V prepared a schedule of assets and debts on the wife’s behalf.

In early November, Attorney V prepared a declaration for uncontested dissolution, signed by Flora Linda. At the same time, Werner filed, in pro per, a declaration regarding service of declaration of disclosure, saying that his preliminary disclosure was served on Flora Linda “by personal service” and Flora Linda signed an equivalent one, but with Attorney V as preparer. At the same time, Attorney V filed a Judgment for dissolution, pursuant to a Family Code section 2336 declaration, with an attached marital settlement agreement.

On its face, the marital settlement agreement was lopsided, to say the least. Despite a thirty-year marriage, it waived all spousal support. And Werner received more than three-quarters of the community assets. The document itself recognized that Flora Linda would ordinarily have been expected to be awarded spousal support and explicitly spelled out Flora Linda’s waiver: “Wife also understands that she ordinarily would be entitled to a monthly support payment in the amount of $1,800.00, payable for a term that is equal to at least one-half of the length of the marriage.” It also recognized that Flora Linda was told that the agreement was lopsided: “[Attorney V] has advised both parties as to their respective rights in the property of the estate. [Attorney V] has especially advised Wife of her rights to a greater and more equitable share of the community property of the estate and the total value of the estate. Wife understands that she is entitled to a greater share than the share that she wants.”

As to the actual retention of Attorney V, the agreement straddled the issue, suggesting that Attorney V was paid to represent both parties, but he was “primarily” representing Flora Linda: “Both parties have agreed to pay [Attorney V] the total sum of $5,000.00 to handle their dissolution and Marital Settlement Agreement on an uncontested basis, although the parties have agreed that said attorney shall primarily be representing Wife’s interests in this matter.”

Both Werner and Flora Linda signed the document on August 1, 2002, and Attorney V signed as “Attorney for Wife.” The judgment and attached marital settlement agreement were signed by Judge Tam Nomoto Schumann on November 4, 2002.

B. The 2004 Set Aside Motion

More than 21 months went by. Then, in September 2004, came a substitution of attorneys, in which Flora Linda’s present counsel was substituted for Attorney V. (Attorney V signed as Flora Linda’s previous lawyer.) The next month, October 2004, Flora Linda’s new attorney filed a motion to set aside the judgment and marital settlement of November 2002.

The core of the motion was Flora Linda’s 11-paragraph declaration. As to the allegation of a ruse put over on Judge Schumann, here are the exact words from the declaration: “My former husband hired attorney [V] to handle our uncontested divorce. My husband paid Mr. [V] a $5,000 retainer fee although the Income and Expense Declaration prepared by Mr. [V] suggested I paid this fee. Since my husband received such a disproportionate share of our assets I was advised that Mr. [V] would appear as my attorney on the paperwork so as to minimize the court’s concern, if any, over the unfairness of the judgment.” (Italics added.)

The only other language touching on the theme of duplicity in the legal representation was this: “I believe Mr. [V’s] interests were conflicted in representing both the Respondent and me in this action. Although he claims to have ‘primarily’ represented me, the Judgment clearly favors my ex-husband who was awarded approximately 82% of our community estate.” Then came language elaborating on the substantive lopsidedness of the agreement.

The declaration was silent as to why Flora Linda appeared to go along with the ruse except for her lack of sophistication: “I am unsophisticated in legal matters and mater [sic] of business. Throughout our marriage I was a homemaker and the Respondent handled all business and financial concerns of the family. Until reviewing the paperwork sent to me after the Judgment was filed, I had no idea we had accumulated assets worth approximately $1,000,000.”

The balance of the declaration quoted portions of the marital settlement agreement, made reference to the signing of declarations regarding preliminary declarations of disclosure, made an allegation about an irregularity in a declaration of disclosure,[2] and admitted that Flora Linda “receive[d] a large packet of papers from [Attorney V] on or about November 2002.”

Flora Linda’s attorney finally argued that her set aside motion was timely, based solely on the irregularity involving the declaration of disclosure.

Werner’s declaration opposing the set aside directly controverted the idea that Attorney V was in reality his attorney and not his wife’s. “Petitioner’s contention that Mr. [V] was my attorney is simply untrue. She decided on Mr. [V]. She paid him the retainer. She had every opportunity to discuss the terms of the dissolution with him at any time.” And: “The comment in her moving papers, that it was decided that Mr. [V] would be ‘her attorney’ so that the judge would not question the property settlement, never happened. There was never any discussion between Petitioner and me about whom Mr. [V] represented. She was the party that wanted the dissolution and I assumed that she took care of the details. I was never party to a discussion about ‘minimizing the court’s concerns, if any, over the unfairness of the Judgment.’ I did not want the divorce and I never was represented by an attorney during the action.”

According to Werner, Attorney V was initially contacted by Flora Linda and she decided that Attorney V would represent her: “After almost 30 years of marriage, in early January 2002, Petitioner and I decided that our marriage was over. Petitioner called various attorneys to handle her case, and decided to have [Attorney V] represent her. She made the appointment with Mr. [V]. She paid him a $5,000 retainer to represent her. She signed the check drawn on our joint checking account. A copy of the check is attached hereto . . . .”

Werner’s declaration made reference to three joint meetings in the summer of 2002 which resulted in the finalization of the uncontested divorce.

First, there was an initial joint meeting: “We both attended an initial meeting with Mr. [V], which is the first time that I ever spoke with him. At the meeting, Petitioner told both of us what she wanted from the dissolution.”

After that initial meeting, there was second meeting of the couple and Attorney V “prior to August 2, 2002, when the distribution was reviewed, in detail. Mr [V] pointed out, to Petitioner, his concerns over the uneven distribution of property. Petitioner stated that she understood that and went on to say she didn’t want anymore.”

Finally, there was another meeting in August 2002, when “both Petitioner and I [Werner] met with Mr. [V] and went over the document together. There was no disagreement over the property division or the support terms. Both parties signed the document at that meeting.” (Attorney V’s own signature on that document as “Attorney for Wife” is dated the day before, July 31, 2002.)

As to motivation, Werner’s declaration intimated that Flora Linda was simply desperate to get out of the marriage: “The question of spousal support was discussed at our initial meeting with Mr. [V]. Petitioner was adamant that she wanted nothing more to do with me, including monthly spousal support.”

In the balance of his declaration, Werner pointed to various provisions in the MSA that indicated that Flora Linda had voluntarily given up her rights.

C. The Trial Court’s Decision

in Early 2005

At a short hearing in early January 2005, the trial court granted Flora Linda’s settlement motion. The shortness of the record allows us to set forth verbatim everything substantive that the trial judge said. Basically, the judge made three separate sets of comments.

The first set explained his tentative decision to grant the motion: “You know, I struggled with this. We look at Steiner and Hosseini[[3]] and that case clearly says just because two spouses failed to exchange final declarations does not constitute a get-a-new-trial-free card. And in addition, I know that Family Code 2123 says that notwithstanding any other provision, a judgment may not be set aside simply because the support is inadequate or there is an inequitable division of assets and liabilities. But, my God, this is a 30-year marriage and for a woman who had no income to waive her spousal support and where husband received over 80 percent of the assets and she received only 20 percent after this 30-year marriage, and where it appears that one attorney represented both parties. In the marital settlement agreement, it says that this attorney represented her. Well, I don’t know if that was very proper representation to give her no spousal support after 30 years and here is this lady with no income and to give her 20 percent of the assets. It just does not strike a responsive chord in my body to, on a technical basis, to deny the motion. We are a court of equity and the equitable nature of this court is that this motion should be granted to allow the parties to come into this court and have justice done. So that’s my intended. It is to grant the motion.”

After hearing from Werner’s counsel (whose theme was Flora Linda’s accountability), the trial judge responded by saying this: “Had she been represented individually by counsel, and had Mr. Deffner been represented individually by counsel, I would have seen this in a different light. I would have said, well, therefore, if she feels that she did not get what she was thinking she was going to get and based on representations made to her by her own individual attorney, then her remedy is to sue that attorney for malpractice. But in this case, we had one attorney representing both parties with some very substantial assets, over a million dollars in assets, and a 30-year marriage with a woman with no income and a husband with substantial earnings at that point. As I’ve said, the technical aspects, the legal bases are not that strong based just on the failures to exchange appropriate declarations, and also because of Family Code section 2123 in terms of the division of assets doesn’t always have to be equitable and support doesn’t always have to be, quote, adequate. This case just does not sit well with me on the equities and that’s -- and I feel that there are some legal bases also that cry out for justice in this case and that’s why I’m granting the motion.”

After hearing once again from Werner’s attorney (who now asserted there was insufficient evidence of dual representation), the trial court uttered its final substantive comment: “And I agree with you that in most cases I would uphold the marital settlement agreement. I would say that you read it, evidently, and if you didn’t read it, well, that’s your fault and you’re held to what is contained within the four corners of that document. But in this case, it just strikes an egregious chord in my body that I just can’t sustain the agreement in terms of the equities, so that, therefore, I’m going to grant the motion.”

Werner did not request a statement of decision, nor does it appear that he would have been entitled to one in any event (see Code Civ. Proc., § 632 [request must be made before submission if “trial” is less than one calendar day]). Since no notice of entry of the formal order granting the set aside motion was served by the court clerk or Flora Linda, Werner’s notice of appeal in June was timely. (See Cal. Rules of Court, rule 2(a)(3).)

III. ANALYSIS

A. The Standard of Review

To the degree that a trial court acts to set aside a judgment based on its inherent, residual authority to protect court processes against fraud, its decision is tested on an abuse of discretion standard, and the appellate court views “all factual matters most favorably to the prevailing party.” (Tsakos Shipping & Trading, S.A. v. Juniper Garden Townhomes, Ltd. (1993) 12 Cal.App.4th 74, 88-89.)

The latter aspect of appropriate factual resolution is particularly important here, since there was a direct conflict in the evidence before the trial court, and the absence of a formal statement of decision means that all reasonable findings must be implied to support the trial court’s ruling. (See generally In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1134 [if no statement of decision, appellate court “will imply findings to support the judgment”].)[4] Thus, we must imply any findings, otherwise established by the evidence, that will support the trial court’s decision. And we must draw all reasonable inferences from those findings.

So what do we have? First, there was this statement from Flora Linda’s declaration: “My former husband hired attorney [V] to handle our uncontested divorce.” The reasonable inference here is that Attorney V really was Werner’s attorney, acting as a kind of double agent on Werner’s behalf.

Then there is the statement that Werner paid Attorney V “a $5,000 retainer fee.” While that statement is directly contested by Werner, who included a copy of a check signed by Flora Linda, we must resolve the conflict in Flora Linda’s favor. It is not unreasonable to infer, for example, that Werner arranged for the $5,000 payment and directed Flora Linda to sign it so it would look like she was hiring him.

Then there is the more direct statement, “Since my husband received a disproportionate share of our assets I was advised that Mr. [V] would appear as my attorney on the paperwork so as to minimize the court’s concern, if any, over the unfairness of the judgment.” (Italics added.) Taken as a whole, this statement suggests that there was a scheme to have Werner’s real lawyer “appear” as Flora Linda’s lawyer in order to deceive the court about the lopsided judgment.

B. Family Code Section 2122

Apart from the operation of Family Code section 2122, it is relatively easy to set aside a family law judgment for mistake, obviously even easier for fraud, if the motion is brought within the six month period for set asides set forth in section 473 of the Code of Civil Procedure. (See In re Marriage of Stevenot, supra, 154 Cal.App.3d at pp. 1070-1071 [“The Legislature has determined that during the time frame provided by Code of Civil Procedure section 473 there is a strong public policy in favor of allowing litigants their day in court.”]; accord, Fam. Code, § 2121, subd. (a) [tracking section 473 of the Code of Civil Procedure, and providing that the “court may, on any terms that may be just, relieve a spouse from a judgment” based on the “grounds” of section 473 and within the time limits of section 473].) As one might expect, a trial court’s decision under section 473 or section 2121 is accorded a high level of deference. (Cf. In re Marriage of Stevenot, supra, 154 Cal.App.3d at p. 1073 [emphasizing trial court’s relative “broader” powers to set aside judgments within the six months allowed by section 473].)

But what about, as in the case before us, motions after six months have passed? Before the passage of section 2122 in 1993, if more than six months had expired, a marital settlement agreement could be set aside only if the settlement was obtained by extrinsic fraud, and a “strong showing of extrinsic fraud” at that. (See In re Marriage of Stevenot, supra, 54 Cal.App.3d at p. 1071 [“a strong showing of extrinsic fraud is required to set aside a marital settlement agreement once relief is unavailable under section 473”]; see also In re Marriage of Heggie (2002) 99 Cal.App. 4th 28, 32.)

However, determining what constituted extrinsic fraud proved to be particularly troublesome, as the Stevenot opinion itself documents. (See In re Marriage of Stevenot, supra, 154 Cal.App.3d at pp. 1060-1068 [tracing history of extrinsic fraud doctrine and noting difficulties both Supreme Court and appellate courts had had with it].)

Accordingly, the Legislature enacted sections 2120 through 2129. This statutory scheme was clearly intended to rationalize what it perceived as the somewhat chaotic case law in the area. (See § 2120, subdivision (d) [noting inconsistent decisions of trial and appellate courts].) The point was: Instead of fumbling around with a fuzzy common law distinction for extrinsic fraud, litigants would be confined to the orderly template set out in section 2122. (See In re Marriage of Heggie, supra, 99 Cal.App. 4th at p. 32 [“After the six months pass, the litigant is limited to just the grounds specified in Family Code section 2122 . . . .”].)[5]

Section 2122 reads:

“The grounds and time limits for a motion to set aside a judgment, or any part or parts thereof, are governed by this section and shall be one of the following:

“(a) Actual fraud where the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud.

“(b) Perjury. 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.

“(c) Duress. An action or motion based upon duress shall be brought within two years after the date of entry of judgment.

“(d) Mental incapacity. An action or motion based on mental incapacity shall be brought within two years after the date of entry of judgment.

“(e) As to stipulated or uncontested judgments or that part of a judgment stipulated to by the parties, mistake, either mutual or unilateral, whether mistake of law or mistake of fact. An action or motion based on mistake shall be brought within one year after the date of entry of judgment.

“(f) Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100). An action or motion based on failure to comply with the disclosure requirements shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply.” (Italics added.)

We will take it as a given that Flora Linda qua herself had no right to relief under section 2122 based on the fraud committed against the court by Werner and Attorney V, since she was at least somewhat aware of the fact of that fraud while it was being perpetrated (in August of 2002). (Ironically enough, we are in agreement with the dissent on this point.) However, the question still arises as to whether the order of the court might yet be affirmed if the trial court had the authority, not otherwise directly barred by statute, to set the earlier judgment aside in order to protect its own processes from fraud. As Witkin has noted, “If the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 340, p. 382.) If the court had the power acting for its own sake to set aside the judgment, we must still affirm. That point is all the more relevant under the facts here, where the ruse concerning the identity of the party really being represented by Attorney V was clearly a major -- probably the major -- factor in the court’s actual decision. (We have also afforded the parties the opportunity to submit supplemental briefing directly on the question to which the judgment may be affirmed based on the trial court’s residual authority.)

C. The Fraud Against the

Court Itself

1. The Context of an Uncontested Divorce

We will begin with the premise that the masquerade of Attorney V as wife’s attorney, when he really wasn’t, actually meant something. And that something was the successful sneaking in of a lopsided marital settlement agreement under the trial court’s radar. Thus, as the paperwork would have crossed the desk of Judge Schumann in November 2002, she might otherwise have raised an eyebrow over the substance of the agreement, but would have been immediately reassured by the fact that it was Flora Linda who had counsel, not Werner. “Well,” Judge Schumann might have reasoned to herself, “if the lady wants out of a 30-year marriage that badly, who am I to deny her what she wants when she has a lawyer looking out for her interests?” And the judge might further have thought, “Besides which, if her own attorney hasn’t explained the property she is giving up in this settlement, she can always sue him for malpractice -- he is, after all, her attorney.”

The scenario is not that far-fetched. Default judgments of dissolution entail an affirmative duty on the court to “require proof” from the parties “of the grounds alleged” (Fam Code § 2336, subd. (a)). Indeed, even if the parties are proceeding by affidavit the trial court may require a personal appearance by an affiant if, for example, a “proposed child support order is less than a noncustodial parent is capable of paying” or even, more generally, if a “personal appearance of a party or interested person would be in the best interests of justice.” (Fam. Code § 2336, subd. (b)(3) and (b)(4).) As the Rutter Family Law Guide notes, “In practice, § 2336 affidavits are ordinarily screened by a court commissioner for determination whether there appear to be any issues requiring proof.” (Rutter Family Law Guide, supra, 12:47, p. 12-15.)

Thus, had the paperwork clearly told the trial court that Flora Linda was the unrepresented party, we may presume that the trial court would not have routinely processed the judgment, but would have inquired as to whether Flora Linda really wanted to enter into the agreement, and perhaps told her of her right to obtain counsel. Indeed, the court probably wouldn’t have approved the agreement but for the falsehood that she had counsel; we have already quoted the recitation in the settlement agreement to the effect that Flora Linda had been advised by her attorney that she was entitled to more than she was receiving. That recitation is effectively worthless if the attorney wasn’t really her attorney at all.

We take judicial notice of the fact that family law judges not uncommonly set a matter for actual hearing when one party did not have an attorney and a stipulation was presented that appeared grossly unfair to that party. The purpose is to ascertain whether that party understood his or her right to an attorney, including the right of that party in certain circumstances to have the attorney paid for by the other party, before proceeding. Such a procedure is consistent with Code of Civil Procedure section 128, subdivision (a)(8) which empowers the court “to amend and control its . . . orders so as to make them conform to law and justice.” (Italics added.) We assume that Judge Schumann would likewise have ordered a hearing before she approved the judgment except for the fact that the paperwork showed (falsely) that Flora Linda already had her own attorney.

2. The Issue of Setting Aside

Judgments Procured Through

A Direct Fraud on the Court

Let us now review the dynamics of the issue of a court’s power to set aside judgments procured through direct fraud against it by examining the leading case on the topic, the United States Supreme Court decision in Hazel-Atlas Glass Co. v. Hartford Empire Co. (1944) 322 U.S. 238. The facts in Hazel-Atlas are quite remarkable, culminating in a direct fraud on a federal intermediate appellate court. The ultimate Supreme Court opinion emphasized the public interest in the integrity of the administration of justice in directing that intermediate court to set aside the judgment procured via direct fraud against it.[6]

The matter began with the attempt by a manufacturer to obtain a patent on a device used in glass making. To do so, the manufacturer cooked up a scheme to deceive the patent office. It arranged to have its own attorneys and employees write an article about glass machinery for a trade journal from the point of view of a union official. The manufacturer finally found a compliant union official -- the president of a glass workers’ union -- who was willing to sign the article as his. The article was subsequently published in the trade journal, which fact prompted the patent office to grant its patent application. But that wasn’t the fraud on the court.

Soon the manufacturer sued the defendant company for infringing on its patent. It did not, at that point, emphasize the spurious trade journal article. But the manufacturer lost in the trial court, which concluded that no infringement had been proved. So the manufacturer appealed to the Third Circuit, and it was here that it committed a direct fraud on the court.

The manufacturer’s brief on appeal directed the court’s attention to the fake trade journal article, and the appellate court bought the ruse wholesale. The court’s opinion quoted “copiously from the article” to show that “‘labor organizations of practical workmen recognized’” the importance of the manufacturer’s process. (Hazel-Atlas, supra, 322 U.S. at p. 241.) The effect was an opinion holding that the patent was valid, infringed, and directing judgment in favor of the manufacturer by the trial court. (Ibid.)

The scheme came to light about nine years later when certain expense accounts were unearthed in a separate action (an anti-trust suit). Even so, the defrauded Third Circuit refused to set aside the judgment because of, among other reasons, the proposition that the fraud had not been discovered recently enough. (Hazel-Atlas, supra, 322 U.S. at pp. 243-244.) The Supreme Court, however, reversed the appellate court’s decision and ordered that the judgment be set aside despite the lapse of nine years.

The federal high court noted that the fraud was not just against the defendant company, but against the Third Circuit itself. (Hazel-Atlas, supra, 322 U.S. at p. 245 [“we find a deliberately planned and carefully executed scheme to defraud not only the Patent Office but the Circuit Court of Appeals”].) And it elaborated on the theme that interests were at stake that transcended those of the defrauded defendant. “Furthermore, tampering with the administration of justice in the manner indisputably shown here involves far more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society. Surely it cannot be that preservation of the integrity of the judicial process must always wait upon the diligence of litigants. The public welfare demands that the agencies of public justice be not so impotent that they must always be mute and helpful victims of deception and fraud.” (Id. at p. 246.)

We may merely, apropos Hazel-Atlas’ comment about the need to preserve the integrity of the judicial process, that the identity theft of parties -- and surely an attorney for one side purporting to represent the other fits that bill -- is the one kind of fraud that no judicial system can tolerate. Allow that, and nothing is certain. It is like a high school student hacking into a school computer and changing his or her transcripts. The legitimacy of the system itself is at stake.

It is also important to note, if one closely reads Hazel-Atlas, that the Supreme Court did not rest its decision in a constitutional power that would, in effect, trump a directly contrary directive of the legislature’s. The power that the Third Circuit had to set aside the judgment procured by direct fraud against it had its origins in equity (see Hazel-Atlas, supra, 322 U.S. at pp. 244, 248), that is, judicially originated. And the contrary rule against which the power was juxtaposed was itself judicially originated, i.e., the lack of power of a federal district court to re-examine a judgment after its “term” expires. (See id. at p. 255 (dis. opn. of Roberts, J.); see also maj. opn. at p. 249 [remarking on the anomalousness of a rule that would preclude relief even though fraud was on the court “itself”].)

3. The Preference for a Solution

By Means of Statutory Construction

Thus Hazel-Atlas should not read as upholding a general inherent judicial power to set aside judgments, even though procured through direct fraud against a court, as against the strong acid of a directly contrary statute. The court simply was saying that, under federal procedural law, one judicially derived value (the integrity of the judicial system) trumped another judicially derived value (the stability of judgments beyond the close of the “term”[7]).

On the other hand, Hazel-Atlas surely does stand for the idea that the need to protect the integrity of the judicial process itself is of paramount value absent a statute directly contrary. With that in mind, let us now study our own high court’s recent exposition of the judiciary’s inherent powers.

Unlike the highly unusual facts in Hazel-Atlas, Le Francois v. Goel, supra, 35 Cal.4th 1094, arose out of a fairly common place situation: The question of whether a trial court, having made an interim ruling (such as denying a motion for summary judgment), could change its mind. The question was acute because, as noted above, amendments to two California procedural statutes could be read to forbid the trial court to do so.

With the enactment of those amendments, a schism had arisen in the intermediate appellate courts. The first set of cases read the statutes as not affording the trial courts any jurisdiction to consider a motion that violated either statute, i.e., one seeking correction of judicial error without new facts. (See Le Francois, supra, 35 Cal.4th at p. 1099.)

To be continue as Part II ...

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[1] We recognize that, given the gravity of the offense, there is a strong case for naming Attorney V. (See Blumberg, Appeals Courts Fuzzy on Misconduct, L.A. Daily Journal (Sept. 19, 2006) p. 3 [“Appellate courts have in recent years drawn criticism that they intentionally bury rulings or identifying information in those rulings that might embarrass lawyers or judges -- in the same way a newspaper might relegate a controversial story to the back pages.”].) However, the issue of whether Attorney V passed himself off as the attorney for Flora Linda was factually controverted before the trial court. Indeed, at oral argument in this court, the first reaction of counsel for Werner when confronted with Attorney V’s apparent fraud on the trial court was simply to deny it factually, citing the conflicting evidence supporting his client. The matter is a tough call precisely because the allegation is so serious, and Attorney V is not involved in proceedings before us now or nor was he involved in the trial court set aside proceeding. He thus would not be collaterally estopped to contest the issue in future matters, such as state bar disciplinary proceedings. While we, as an appellate court, are bound by the trial court’s implied finding that Attorney V did indeed impersonate counsel for the opposite party -- there is no way we can change that for purposes of this appeal now -- it would be a grave injustice to him to name him if, for example, he were in some future context to be exonerated. Accordingly, on reflection, and since naming him is not necessary for resolution of this case, we do not name him.

[2] Because the trial court’s order may be affirmed on the ground of the trial court’s power to protect itself from the fraud of one side impersonating the other, we do not need to discuss the intricacies of the irregularity.

[3] Referring to In re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th 519.

[4] It has been established for more than 30 years, going at least as far back as Reifler v. Superior Court (1974) 39 Cal.App.3d 479, that family law courts adjudicating family law OSCs have not been required to take any oral testimony. (See also Hogoboom, et al. Cal. Practice Guide: Family Law (The Rutter Group 2005) 5:492, p. 5-186 (hereinafter “Rutter Family Law Guide”) [“Except for OSCs re Contempt, the court generally is not required to take oral testimony or receive additional evidence, but may exercise its discretion to grant or deny relief solely on the basis of the written application, response, supporting and opposing declarations and memoranda of points and authorities” (original italics deleted)].) The “Reiflerization” of family law OSC practice creates the anomaly that if there is a factual conflict in the paperwork, on appeal the court must resolve the conflict in favor of the winning party -- the exact opposite of what would happen on a motion for summary judgment. But while anomalous, the dichotomy is not necessarily inconsistent. In the civil summary judgment context, conflicts in declarations must be resolved in favor of the losing party lest a litigant’s constitutional right to a jury trial be effectively denied. By contrast, there is no constitutional right to jury trial in family law, given its English roots in what was fundamentally ecclesiastical adjudication. (See Wuest v. Wuest (Nev. 1882) 30 P. 886, 886 [“In England the jurisdiction of divorce cases was committed to the ecclesiastical courts.”].) On top of that, as Justice King has specifically pointed out, the streamlined procedure of resolution of family law OSCs only on the paperwork expedites the crowded dockets of family courts in urban areas. (See In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1059; County of Alameda v. Moore (1995) 33 Cal.App.4th 1422, 1427.)

There are, of course, some checks on the family law procedure. The court must review all timely submitted written evidence (Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1319) and cannot rely on non-evidence, such as an attorney’s unsworn statements (County of Alameda v. Moore, supra, 33 Cal.App.4th at p. 1427) or make an order based on informal chambers discussion of the case (In re Marriage of Dunn-Kato (2002) 103 Cal.App.4th 345, 348). And some areas of family law (e.g., child custody move away cases) are considered so important that they trump the need for expedition; the parties have a right to a full evidentiary hearing. (In re Marriage of Campos (2003) 108 Cal.App.4th 839, 843-844.) Moreover, there is an escape valve in ordinary family law OSCs that the declarations may be “supplemented as necessary by offers of proof,” and even, in the trial judge’s discretion, “occasionally by oral testimony.” (County of Alameda v. Moore, supra, 33 Cal.App.4th at p. 1427.)

For our purposes, the salient fact is that despite a glaring factual conflict in the paperwork, Werner’s counsel did not request an evidentiary hearing to resolve the clear conflict between the two stories. Therefore, on appeal we must accept the version of events that is most consonant with the trial court’s ruling, which makes Attorney V and Werner the villains of the piece.

[5] To the same effect is In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 686, where the court held that a suit to set aside a marital property agreement must be based on one of the five exclusive grounds specifically set forth in section 2122. Mere inequitable distribution due to attorney negligence, for example, is not one of the grounds and therefore not sufficient. (Rosevear, supra, 65 Cal.App.4th at p. 686.)

[6] Hazel-Atlas’ language on the federal procedural question of whether “appellate leave” was required before a district court could reopen a case that had previously been reviewed on appeal was ultimately held “unpersuasive” in Standard Oil Co. of California v. United States (1976) 429 U.S. 17, 18, but that is another point.

[7] The reference is to the old common law rule that trial courts could not amend judgments after adjournment of the term in which they were rendered. (See Bank of U. S. v. Moss (1848) 47 U.S. 31, 34 [“The like general rule is settled in England. During the same term, judgments are amendable at common law, -- being then in paper, in fieri, in the breast of the court. Afterwards, they are amendable under the Statutes of Amendments or Jeofails.”].)