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

Story continue from Part I ...

A second set of cases, however, concluded that at least to some extent the statutes themselves “violate separation of powers principles“ or would do so “if interpreted to limit the trial court’s power to act.” (Le Francois, supra, 35 Cal.4th at p. 1100.) This second set of cases fell into two groups -- one saying that the statutes could validly limit a party’s power to ask for reconsideration, but could not validly limit the court’s own power to reconsider its ruling on its own motion (ibid.) while the other held that the distinction between court and party was not meaningful, and therefore the court had the inherent power to consider its prior interim orders either on its own motion or motion of a party. (Id. at p. 1101.)

The Le Francois court explicitly recognized the constitutional problem, in broad terms striking this balance between legislature’s power to regulate court procedure and the judiciary’s own inherent powers based on its core function of deciding cases: “Only if a legislative regulation truly defeats or materially impairs the courts’ core functions, including, as relevant here, their ability to resolve controversies, may a court declare it invalid.” (Le Francois, supra, 35 Cal.4th at p. 1104; cf. Rutherford v. Owens- Illinois, Inc. (1997) 16 Cal.4th 953, 967 [trial judges lack power to issue local rules in conflict with statute].) That balance, combined with the traditional judicial reluctance to decide matters on constitutional, as distinct from statutory grounds (see id. at p. 1105), allowed the court to thread its way to a solution to the problem: The statutes were construed -- and granted, given their text, that was not hard to do -- to apply only to parties’ written motions for reconsideration or make repeat summary judgment motions, but not to limit the court’s own authority. That is, at least absent directly contrary statute, there is a residuum of inherent constitutional authority in the judiciary to correct its own interim rulings on its own motion. Because the statutes in question were susceptible of an interpretation that did not impinge on that constitutional authority, the court found it unnecessary to consider what would happen if they did impinge on it. (See id. at p. 1105.) With that solution in mind, we will now return to section 2122 and surrounding statutes in the Family Code. (As to the problem of what might prompt a court to take action, we will address that in a moment.)

4. Application of Le Francois

As noted above, the 1993 legislation of which section 2122 is a part was intended to rationalize the “unpredictable and inconsistent“ jurisprudence to which the intrinsic-extrinsic fraud distinction had given rise. (See § 2120, subd. (d).) The Legislature struck its own balance between the need for finality of family law judgments and public interest in ensuring equitable results (see § 2120, subd. (c)) essentially by extending the “time limits for a motion to set aside a judgment,” (§ 2122), with actual fraud being one year from discovery by the “defrauded party.” As with the procedural statutes interpreted in Le Francois, there is nothing in the Family Code statutes before us here that directly addresses the ability of a court, on its own motion, to set aside a judgment where it -- the court itself -- is the “defrauded party.” As far as we are aware, though, no decision has addressed the question of whether section 2122 (and specifically subdivision (a), referring to fraud) was ever intended to inhibit a trial court’s inherent power to protect itself against fraud.

In supplemental briefing directed at the issue, Werner contends that the “fraud” mentioned in section 2122, subdivision (a) is fraud -- any fraud, in the “general sense” -- as distinct from fraud on a party. Along that line he asserts that fraud on the court is simply a subspecies of all fraud, which section 2122 was intended to control. The idea is that section 2122 should be construed to include the power of a court acting on its own to protect itself against fraud.[1]

We cannot agree -- the idea is not compatible with the statutory text. The statute begins by setting forth the “grounds and time limits for a motion,” which right off the bat points to litigant-initiated behavior. And the first sentence of subdivision (a) refers to “Actual fraud where the defrauded party was kept in ignorance” and the second sentence refers to “the complaining party.” This language indicates that the focus of the statute is the litigant, not the court. Courts are not “parties” to litigation. (Curle v. Superior Court (2001) 24 Cal.4th 1057, 1066 [“the usual, ordinary meaning of the word ‘party’ as used in the Code of Civil Procedure refers to the litigants in the underlying matter and does not include the individual judge”]; Ng. v. Superior Court (1997) 52 Cal.App.4th 1010 [trial judge had no standing to oppose a party’s writ petition].[2]) We therefore conclude that, whatever constraints the statute puts on litigants, it does not (in parallel with Le Francois) constrain the courts, acting in their own right.

What about the alternative rationale of considering a court the “defrauded party” under the statute, since the trial court here certainly set aside the judgment within one year of its first discovery of the fraud perpetrated against it, and in that sense complied with section 2122, subdivision (a)? The problem is that such a solution (which would, though, be sufficient to uphold the trial court’s order) is just too out of step with the statutory language. Section 2122 is about motions brought by parties, not courts acting on their own to protect the peculiar institutional interest of the judicial system.

We also construe section 2122 against the backdrop of the Code of Civil Procedure section 128, subdivision (a)(8), which recognizes that every court has the power to control its process to conform to law and justice. The two statutes can be harmonized, in the manner of the Le Francois analysis, by recognizing that section 2122, applying to parties, does not curtail the residual power of the court otherwise set forth in section 128.

But now we must wrestle with the question of what exactly prompts a court to take action, to which Le Francois devoted considerable analysis. Does the fact that Flora Linda initiated the motion which led to the set aside necessarily require reversal?

While Le Francois would ultimately disapprove those appellate cases that had held the distinction between litigant-initiated action and judicially-initiated action was immaterial (Le Francois, supra, 35 Cal.4th at p. 1107), it did not lay down a strict rule that a court could never correct its own error precipitated by some prompting from a litigant. The Le Francois court noted, for example, that a party could ask the court at a status conference to correct its own error. (Id. at p. 1108 [“If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief. For example, nothing would prevent the losing party from asking the court at a status conference to reconsider a ruling.”].)

Then again, Le Francois was also clear that a party “may not file a written motion to reconsider that has procedural significance if” it did not otherwise satisfy the requirements of the relevant statute. (Le Francois, supra, 35 Cal.4th at p. 1108, original italics.) A court presented with such an (improper) written would be under no compunction to rule upon it, and “without more” the adversary party would be under no compunction to respond to it. (Ibid.) Thus Le Francois concluded that unless the statutory requirements were “satisfied,” any formal action to correct a prior interim order must begin with the court itself. Then the court should inform the parties of its concern, “solicit briefing, and hold a hearing.” (Ibid.) Only then would a party have any duty to respond to the court’s sua sponte inclination to rethink its prior ruling. Such a “procedure provides a reasonable balance between the conflicting goals of limiting repetitive litigation and permitting a court to correct its own erroneous interim orders.” (Id. at p. 1109.)

The question we thus face is whether the trial court here, considered as acting to protect the integrity of its own processes, could set aside the judgment even though the initial formal precipitant of the action was a litigant (and one, we should recognize, otherwise barred from obtaining relief under section 2122[3]).

Applying Le Francois to the case at hand, however, requires a recognition of the differences as well as similarities in the two cases. The most striking difference, of course, is the epistemological one: In a case like Le Francois, where a judge by definition has made a prior interim ruling, he or she will necessarily be conscious of the fact of the prior decision, and have some inkling of any potential for error.[4] By contrast, in a case where there is a scheme to deceive the court itself by means of an attorney masquerading as the lawyer for the adverse party, by definition no court will be aware of deception until someone brings it to light, and, practicably, that someone will only be the adversely affected party. Unlike the situation in Le Francois, here by definition that court could not redress the fraud perpetrated against it without litigant-initiated action.

Finally, in that regard, the relative importance of the public interests involved are different than in Le Francois. Le Francois involved a fairly commonplace scenario -- whether a trial court may correct its own interim errors, which (at least in most cases, i.e., where the litigant objected at the trial level) would be in any event correctable on appeal. This case, however, involves one of the most horrendous frauds on the court imaginable -- nothing less than, as noted in Hazel-Atlas, the very “preservation of the integrity of the judicial process.” And it involves a fraud that, unlike any error in the Le Francois scenario, could never be corrected in any context unless a litigant brought it to the court’s attention. Under these facts, the preservation of the integrity of judicial process was thus sufficient by itself to justify the trial court’s set aside order.

To be sure, had the trial court done things exactly right, it would have explicitly engaged in a two-step process. It first would have determined whether Flora Linda’s motion could be granted under section 2122. It would have found the answer to be no. (Our dissenting colleague would have had the trial court stop there.) But, secondly, the trial court would have looked strictly at whether the protection of the institutional integrity of the judicial system from the fraud of one side’s attorney masquerading as the other side’s attorney merited its setting aside the judgment based strictly on the interests of the judicial system, totally independent of the party’s. And the answer to that matter, under these facts, is indisputable; it is impossible to imagine the trial court acting in any other way having determined that papers ostensibly prepared by the attorney for one party were really prepared by the attorney for other party.

Thus in regard to the proper disposition, the astounding facts in this case are distinguishable from those in Le Francois. Le Francois involved the interests of private parties concerning the proper disposition of a summary judgment motion in what appeared to be a garden-variety business dispute. Accordingly, the court could not know what would have happened if the trial court had done things exactly right: “We do not know what would have occurred if [the trial court] had done so [i.e., give the parties an opportunity to be heard after informing them “that it might change its previous ruling on its own motion”].” (Le Francois, supra, 35 Cal.4th at p. 1109, fn. 6.) By contrast, under the arresting facts before us, the rule on which Justice Kennard’s concurring and dissenting opinion in Le Francois was based is applicable -- the court got the right result, even if it made a procedural error. (See id. at p. 1109 (conc. & dis. opn. of Kennard, J.) [“Although the trial court here erred insofar as it purported to act on a party’s motion rather than on its own motion, this procedural error does not affect the judgment’s validity.”].) Flora Linda was only the incidental beneficiary of trial court’s action which may be justified solely on the basis of protecting the legal system itself.

IV. DISPOSITION

The order is affirmed. Respondent shall recover her costs on appeal.

SILLS, P. J.

I CONCUR:

RYLAARSDAM, J.

Aronson, J. dissenting.

May a party who knowingly participates in a fraud on the court obtain relief from the resulting judgment, despite a statutory bar to obtaining that relief? The answer should be no, particularly where that party has offered no excuse for either her participation in the fraud or neglect in waiting some 21 months to seek relief. In reaching the opposite conclusion, the majority’s decision not only rewards a culpable and dilatory party, but resurrects the confusion that reigned before the Legislature’s enactment of Family Code section 2120 et seq.[5] Accordingly, I dissent.

A. Section 2122 Bars Flora Linda’s Motion to Vacate the Judgment

Before 1993, motions to set aside judgments dividing marital property and awarding support were governed by Code of Civil Procedure section 473 if brought within six months of the judgment’s entry. A party moving to vacate a judgment beyond six months could obtain relief only if the judgment had been obtained through extrinsic, but not intrinsic, fraud. (In re Marriage of Heggie (2002) 99 Cal.App.4th 28, 32.) Often, however, the line between extrinsic and intrinsic fraud was not clear, and “proved to be a ‘repetitively troublesome issue in the family law field.’” (Ibid.)

In 1993, the Legislature added a chapter to the Family Code entitled “Relief From Judgment” to resolve the confusion. (§§ 2120-2129.) Key to this chapter is section 2122, which establishes the specific grounds entitling a party to relief, and the time limits in which the court may act. In adopting the Relief from Judgment chapter, the Legislature sought to balance “the public policy of assuring finality of judgments” with “the public interest in ensuring proper division of marital property, in ensuring sufficient support awards, and in deterring misconduct.” (See § 2120, subd. (c).) To achieve this goal, the chapter placed strict limits on a litigant’s ability to obtain relief from marital judgments.

“Section 2122 sets out the exclusive grounds and time limits for an action or motion to set aside a marital dissolution judgment.” (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684, italics added.) The limiting nature of section 2122 is echoed in section 2121, which provides: “In proceedings for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court may, on any terms that may be just, relieve a spouse from a judgment, or any part or parts thereof, adjudicating support or division of property, after the six-month time limit of Section 473 of the Code of Civil Procedure has run, based on the grounds, and within the time limits, provided in this chapter.” (Italics added.) Similarly, section 2121, subdivision (b), stipulates: “In all proceedings under this chapter, before granting relief, the court shall find that the facts alleged as the grounds for relief materially affected the original outcome and that the moving party would materially benefit from the granting of the relief.”

The majority suggests Flora Linda’s failure to demonstrate grounds for relief under section 2122 renders the statute inapplicable. But section 2122 unambiguously stipulates: “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: . . . .“ (Italics added.) Consequently, Flora Linda’s failure to satisfy section 2122’s requirements meant the court should not have granted any relief.

The majority concedes Flora Linda was not entitled to seek relief under section 2122, but construes the statute to allow the court to grant relief on its own motion. The majority’s construction disregards the Legislature’s purpose in enacting the Relief from Judgment chapter.

Marriage is a matter of public concern, whose regulation is entrusted to the Legislature. (In re Marriage of Fell (1997) 55 Cal.App.4th 1058, 1061.) Thus, in the arena of marriage and divorce, “[w]e construe the . . . statutes as a matter of law to ascertain their purposes and to effectuate the intent of the Legislature. [Citations.]” (Ibid.)

In adopting the Relief from Judgment chapter, the Legislature sought to (1) end the “considerable confusion” concerning when courts could their equitable powers to set aside judgments, and (2) strike a balance between finality and fairness in marital dissolution judgments. (§ 2120, subds. (c) & (d).) It sought to achieve these goals by establishing the sole grounds and time limits upon which the court could grant relief from a final judgment. Granting relief in the present case frustrates these legislative goals.

As the majority notes, Flora Linda knew from the beginning the attorney appearing on her behalf did not actually represent her interests. She thus participated in the fraud that now gains her relief from the judgment. Ironically, had she been unaware that her attorney of record secretly represented her husband in the dissolution proceedings and first learned of the fraud the day after entry of judgment, her 21-month delay before seeking to vacate the judgment would have foreclosed relief under the one-year time period specified in section 2122, subdivision (a). But the majority provides relief for a more culpable and less diligent litigant ---- one who did nothing to protect her interests either at the hearing or for 21 months thereafter. This result frustrates the Legislature’s purpose in adopting section 2122.

B. Le Francois Does Not Support the Majority’s Disregard of Section 2122

To sidestep section 2122, the majority misapplies the California Supreme Court’s decision in Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois) in two ways.

First, Le Francois dealt exclusively with a court’s inherent constitutional power to correct interim rulings. Thus, the court avoided a potential separation of powers conflict by construing statutes dealing with reconsideration motions as affecting only the parties’ right to seek relief, and not the court’s ability to issue relief sua sponte. Because the present case centers on a court’s ability to grant relief from a final judgment, and not an interim order, the concerns in Le Francois simply are not present here. Indeed, the court in Le Francois expressly cautioned against engrafting its analysis to final orders, stating: “What we say about the court’s ability to reconsider interim orders does not necessarily apply to final orders, which present quite different concerns.” (Le Francois, supra, 35 Cal.4th at p. 1105, fn. 4.)

The Supreme Court recognized the difference between interim and final rulings in People v. DeLouize (2004) 32 Cal.4th 1223 (DeLouize). The court observed: “Generally speaking, courts may correct judicial error in the making of interim orders or in limine rulings until pronouncement or entry of a judgment. [Citations.] [Fn. omitted.] On the other hand, judicial error in the making of a final order or judgment ‘may not be corrected except pursuant to statutory procedures’ or on the limited grounds available for a collateral attack.” [6] (Id. at p. 1231, italics added.) DeLouize explained that the importance of finality limited a trial court’s ability to modify or vacate final judgments. “Orders and judgments are deemed final in the superior court, and not subject to reconsideration by that court, to preserve confidence in the integrity of judicial procedures and to avoid the delays and inefficiencies associated with repeated examination and relitigation of the same facts and issues. . . . This court has recognized that ‘[e]ndless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice . . . .’ [Citations].” (Id. at p. 1232.)

Second, Le Francois considered the Legislature’s intent when construing the statutes at issue. Specifically, Le Francois determined that Code of Civil Procedure section 1008 prohibited parties from seeking reconsideration, but did not prevent the court from sua sponte reconsidering its own interim rulings. In reaching that conclusion, the court found the Legislature enacted section 1008 to conserve judicial resources by protecting the trial court from repetitive motions for reconsideration. (Le Francois, supra, 35 Cal.4th at pp. 1106-1107.) The court recognized these concerns are not germane when the trial court on its own reconsiders earlier rulings.

In contrast, nothing indicates the Legislature enacted the Relief from Judgment chapter to protect courts against repetitive motions to vacate family law judgments. Instead, the statute clearly expresses the Legislature’s intent to balance finality of judgments and fairness in marital dissolution judgments, and to dispel prevailing confusion concerning the courts’ exercise of their equitable powers. Obviously the Legislature’s purpose in adopting section 2122 is frustrated when a court vacates a family law judgment on grounds not authorized by the statute.

C. Code of Civil Procedure Section 128 Does Not Support the Trial Court’s Order

Eschewing a clear legislative directive, the majority bases its decision on the “residual power of the court” under Code of Civil Procedure section 128, subdivision (a)(8), which provides that courts have the power “[t]o amend and control its process and orders so as to make them conform to law and justice.” This authority, however, does not stretch nearly as far as the majority suggests.

Indeed, the power to amend and control process and orders embodied in Code of Civil Procedure section 128, subdivision (a)(8) is “limited to correction of clerical errors, setting aside judgments or orders inadvertently made and not the result of an exercise of judgment, prevention of the wrongful use of process rightfully issued, and other powers inherently necessary for the court to make its judgments speak the truth and to insure that its orders are carried out in accordance with the court’s intentions. Thus, the power to set aside a judgment for extrinsic fraud or mistake clearly could not be derived from Code of Civil Procedure section 128.“ (Smith v. Superior Court (1981) 115 Cal.App.3d 285, 291, italics added, citing Bloniarz v. Roloson (1969) 70 Cal.2d 143, 148 (Bloniarz).)

D. The Legislature Validly Limited the Trial Court’s Equitable Power to Set Aside a Final Judgment

Family courts, like all courts of general jurisdiction, possess equitable powers. These powers are, however, subject to legislative limitation. Specifically, “the power to set aside judgments obtained through extrinsic fraud and mistake is within the equity jurisdiction of a court. [Citation.] Unless limited by statute, this power is a necessary incident of the constitutional grant of general jurisdiction.” (Bloniarz, supra, 70 Cal.2d at p. 147, italics added.) When the Legislature enacts statutes limiting rights, “‘certain cases which courts of equity once entertained can no longer arise. [The equity power of courts] was not intended as a limitation upon the power to legislate upon the rights of persons.’” (Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 728.)

By enacting the Relief from Judgment chapter, the Legislature unmistakably curtailed the courts’ equitable powers to vacate family law judgments. In section 2120, subdivision (d), it observed: “The law governing the circumstances under which a judgment can be set aside, after the time for relief under Section 473 of the Code of Civil Procedure has passed, has been the subject of considerable confusion which has led to increased litigation and unpredictable and inconsistent decisions at the trial and appellate levels.”

Even if the Relief from Judgment chapter did not expressly state the Legislature’s intent to curtail the court’s equitable power, equity still must follow the law. “[W]hen the law determines the rights of the respective parties, a court of equity is without power to decree relief which the law denies.” (Marina Tenants Assn. v. Deauville Marina Development Co. (1986) 181 Cal.App.3d 122, 134.) Similarly, “[t]he court’s inherent equitable power may not be exercised in a manner inconsistent with the legislative intent underlying a statute . . . .” (See Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116, 131, fn. 14.) Thus, the trial court erred in exercising equitable power to grant relief expressly denied under section 2122.

E. Even under Equitable Principles, the Trial Court’s Order Was an Abuse of Discretion

Even assuming the trial court retained equitable power to vacate a final judgment in a family law case, Flora Linda failed to demonstrate any basis for equitable relief.

Before enactment of the Relief from Judgment chapter, the Supreme Court set the following guidelines for a court’s exercise of equitable power: “After the time for ordinary direct attack has passed [citation], a party may obtain relief from an erroneous judgment by establishing that it was entered through extrinsic fraud or mistake. [Citations.] To warrant relief on this ground, the moving party must establish: (1) facts constituting extrinsic fraud or mistake; (2) a substantial defense on the merits; and (3) diligence in seeking relief from the adverse judgment.” (In re Marriage of Damico (1994) 7 Cal.4th 673, 688, italics added.) The Supreme Court applied the diligence requirement even in situations when it determined the trial court itself had been defrauded.

In re Marriage of Park (1980) 27 Cal.3d 337 (Park) is instructive. There, the wife had been arrested and involuntarily deported to Korea while dissolution proceedings were pending. The wife’s attorney requested another attorney to represent her at the dissolution hearing. The wife never agreed to representation by the new attorney, and the new attorney never spoke to the wife. At the hearing, the new lawyer did not ask for a continuance, challenge the husband’s testimony, or present any evidence on the wife’s behalf. (Id. at p. 341.) The husband knew his wife had been deported but did not inform the court. The wife first learned of the judgment when she returned to the United States over three years later. She promptly moved to set aside the judgment, but the trial court denied her motion.

The Supreme Court reversed, finding the husband’s failure to inform the court of his wife’s predicament not only defrauded the wife, but “perpetrated a fraud upon the court . . . .” (Park, supra, 27 Cal.3d at p. 343.) The court’s determination that the divorce court had been defrauded, however, did not end its analysis. After recognizing the wife did not receive a fair hearing, the court observed: “However, a motion to vacate a judgment should not be granted where it is shown that the party requesting equitable relief has been guilty of inexcusable neglect or that laches should attach.” (Id. at p. 345.) On this point, the court noted the wife’s diligence in seeking relief: “The speed with which Mrs. Park moved to vacate the judgment of dissolution once she learned of its entry also shows diligence. Less than a month after she learned for the first time that a judgment of dissolution had been entered against her, she employed an attorney to file a motion to vacate the judgment. Despite her problems with the language and culture, Mrs. Park attempted to challenge the court’s action in her absence. This can scarcely be denominated inexcusable neglect.” (Id. at p. 346.)

In contrast, Flora Linda has provided no evidence of diligence in either protecting her rights or pursuing relief. At the time of the judgment, Flora Linda apparently knew Attorney V did not represent her interests, but failed to seek independent legal counsel until some 21 months later. She claims she was unaware of certain irregularities in some of the legal documents provided to her in November 2002, and did not discover this until her new attorney reviewed them in August 2004. But she offers no excuse why she failed to protect her interests at the outset. Indeed, she executed a property settlement agreement which declares on the page where her signature appears: “Wife acknowledges and understands that Husband is receiving a far greater share of the estate by this Agreement and Wife has been advised that if she is not content with her representation by [Attorney V] that she has the opportunity to seek alternate independent counsel to advise her as to the equitableness of this Agreement. However, Wife has agreed to waive independent representation and wishes to ratify each and every aspect of this Agreement despite the Agreement’s lack of equality in distribution of the community property of the estate.” (Italics added.)

Flora Linda states in her declaration she is an unsophisticated homemaker. This is true of many family law litigants and does not justify her lack of diligence. Thus, even if we were to completely disregard section 2122 ---- as the majority does ---- Flora Linda still was not entitled to relief under previously existing equitable principles.

F. The Trial Court’s Order Is Not Justified by a “Fraud on the Court” Theory

The majority bases its decision in part on Hazel-Atlas Glass Co. v. Hartford Empire Co. (1944) 322 U.S. 238 (Hazel-Atlas), a decision involving what the majority terms “highly unusual facts.” Although Hazel-Atlas did authorize a federal district court to set aside a judgment obtained by a fraud perpetrated on the court, the case is inapposite for several reasons.

In Hazel-Atlas, the court balanced equitable principles against a “court-made rule . . . that judgments should not be disturbed after the term of their entry has expired.” (Hazel-Atlas, supra, 322 U.S. at p. 248.) The Supreme Court merely exercised its supervisory powers to overturn a court-created rule of procedure. Nothing in Hazel-Atlas authorized a court to exercise equitable principles to disregard a statute expressly designed to limit a court’s equitable powers to grant relief from judgment. Moreover, Hazel-Atlas is a federal case dealing with patents. Marriage and divorce are state law issues, governed by the Legislature and our own Supreme Court.

In an effort to bring the present case outside of unambiguous statutes and established judicial precedent, the majority relies on hyperbole, asserting the present case “involves one of the most horrendous frauds on the court imaginable,” and implicates “the very ‘preservation of the integrity of the judicial process.’” (Maj. Opn. ante, at p. 23.) In truth, the fraud at issue here is far less “horrendous” than in Park, where the court was defrauded both by a stranger masquerading as the wife’s attorney, and by the husband’s concealment of his wife’s deportation.

The dignity of the court is not enhanced by granting relief otherwise barred by statute to a complicit and dilatory party. Indeed, the majority’s opinion undermines the principle of finality and the public’s confidence in the integrity of established judicial procedures.

G. Conclusion

In enacting the Relief From Judgment chapter, the Legislature recognized that motions to set aside family law judgments had “been the subject of considerable confusion which has led to increased litigation and unpredictable and inconsistent decisions at the trial and appellate levels.” (§ 2120, subd. (d).) The majority’s decision resurrects this confusion. Instead of wrangling over intrinsic versus extrinsic fraud, the new battleground will focus on whether the alleged fraud deceived the adversarial party or the court. The result will inevitably be “increased litigation and unpredictable and inconsistent decisions at the trial and appellate levels.”

The majority concludes its analysis by declaring: “Flora Linda was only

the incidental beneficiary of the trial court’s action . . . .” Because the majority opinion undermines legislative authority and confidence in the integrity of judicial procedures, I must conclude that the only beneficiary of the majority’s decision is Flora Linda.

_________________________

ARONSON, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

[1] Though the two best cases he adduces for that idea, In re Olivia A. (1986) 181 Cal.App.3d 237 and County of Alameda v. Clifford (1960) 187 Cal.App.2d 714 both involved situations where a public agency was not notified of proceedings which had the effect of terminating one party’s duty to support another. Neither one involved a case where a party or its attorney impersonated an adversary.

[2] Ironically, dicta in Ng arguably leaving the door open door a crack for a trial court to participate in disqualification proceedings at the appellate level (see Ng, supra, 52 Cal.App.4th at p. 1019) was disapproved in Curle, which firmly shut the door. (See Curle, supra, 24 Cal.4th at p. 1069.)

[3] We wholly agree with our dissenting colleague that Flora Linda herself was entitled to no relief under section 2122. Where we join issue is on the question of whether the order in this case may be affirmed based on powers conferred on the court not otherwise directly curtailed by section 2122. We need only add that today’s opinion applies in the extraordinary (perhaps bizarre would be a better word) narrow circumstances where someone masquerades as an attorney for a party when he or she is the attorney for an adversarial party. That’s a far cry from a “new battleground” focused on “whether the alleged fraud deceived the adversarial party or the court.” (Dissent, slip opn. at p. 10.) Just to make matters clear, though, this opinion should not be read as countenancing any set aside based on (mere) deception of the adversarial party or the court. We note, in that regard, that our decision today would not even stretch to cover the facts of In re Marriage of Park (1980) 27 Cal.3d 337, where an attorney was asked to represent a party by the party’s previous attorney (who had just been appointed a court commissioner) without informing that party (who was out of the country at the time). The case was an easy set-aside under the old extrinsic fraud rules, but it did not, as the case before us does, involve the kind of masquerade which cuts to the core of the systemic integrity of the entire legal system -- unlike the case before us there was no “masquerade” by an adversary, only someone filling in for another without a client’s consent.

[4] And even if another judge, for example, has been assigned to the case, the prior interim ruling and relevant paperwork is at least in the court file.

[5] All statutory references are to the Family Code unless otherwise noted.

[6] In DeLouize, the court considered whether a trial court, after granting a new trial motion in a criminal case, could change its ruling and deny the new trial motion and reinstate the judgment even though the time for the prosecution to appeal the initial new trial ruling had expired. The court acknowledged that a trial court lacks authority to grant a new trial after it has denied a new trial motion. (DeLouize, supra, 32 Cal.4th at p. 1228.) Nonetheless, the court determined that an order granting a new trial motion did not preclude the court from reinstating the jury verdict, because an order granting a new trial, unlike one denying a new trial, is not a final ruling.