Clements v. Mainardi

Filed 10/18/06 Clements v. Mainardi CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Dawn A. Clements appeals the trial court’s denial of her motion pursuant to Code of Civil Procedure section 473, subdivision (b),^[1] to set aside a judgment in favor of Barry A. Mainardi. Clements contends the underlying judgment in a family law case was based on Mainardi’s perjury and fraud. Additionally, she maintains the lower court did not have jurisdiction over her separate property. We conclude that the trial court did not abuse its discretion in denying the motion to set aside the judgment and affirm its ruling.

BACKGROUND

Clements and Mainardi were married on March 13, 1997. Clements filed a petition for dissolution of the marriage on March 22, 2002. Attorney Raymond E. Willis represented Clements in her dissolution action. Willis resided in Clements’s home, a San Francisco residence, until approximately April 6, 2004.

Mainardi, a disabled veteran, suffers from Muscular Dystrophy. At the time of the filing of the dissolution petition, Mainardi was living in an apartment in Las Vegas, Nevada.

Mainardi answered the petition for dissolution of marriage in propria persona. In May 2002, Mainardi filed an order to show cause for spousal support. On July 10, 2002, the court ordered temporary spousal support as follows: Clements was to continue to pay Mainardi’s rental expense of $1,050, his utilities, and an additional $500 per month.

On July 18, 2002, Clements filed a motion to modify the spousal support order. On February 18, 2003, Mary Jo Hart became the attorney of record for Mainardi. On February 24, 2003, Hart provided Clements with notice that her deposition would be taken on March 13, 2003.

On March 11, 2003, Clements, through her attorney, filed a protective order. Her attorney, Willis, declared that Clements “has been in hiding in fear for her life since September 2, 2003[,]” and he was unable to reach or speak with Clements since that time. The court denied the request for a protective order and ordered Clements to appear for her deposition.

Mainardi moved to have Willis removed as legal counsel for Clements because he had acted as counsel for Western Select Securities, Inc. (Western Select Securities). According to Mainardi, Western Select Securities was community property; Clements insists that it was her separate property.

Willis filed a motion to be relieved as the attorney for Clements. The trial court granted Willis’s request on June 19, 2003.

The trial court held a case management conference on February 24, 2004. Clements did not appear and did not file any statements or documents with the court for that hearing. The court issued an order permitting Mainardi to enter the San Francisco property where Clements was residing to complete an accounting of the contents inside the residence. On April 6, 2004, Mainardi entered the premises; Clements confronted him and Mainardi left the home without taking an accounting of the property inside. That same day or shortly thereafter, Willis removed all of his belongings from Clements’s San Francisco house.

On May 11, 2004, the court held another case management conference. Clements did not appear and did not file any documents with the court for that hearing.

Clements also did not appear at a status conference on September 13, 2004. At the hearing, the court set the matter for trial on November 15, 2004. Notice of the trial setting was mailed to Clements at her San Francisco residence. Mainardi prepared and served all of his financial disclosures. Clements never served her preliminary or final declarations as required by Family Code sections 2104 and 2107.

On November 15, 2004, Mainardi and his counsel appeared for trial; Clements did not appear. The court entered the judgment of dissolution as requested by Mainardi. The court’s order gave Clements, among other things, the residence in San Francisco and its contents. The court gave Mainardi, among other things, Western Select Securities. The court awarded no spousal support to either party.

The court entered judgment on November 17, 2004. Notice of entry of judgment was mailed to Clements at her San Francisco residence that same day.

On December 5, 2004, Clements wrote a 14-page letter to the court stating that she was not present in court for the trial because she was in hiding. She did not claim that she did not receive notice of the trial date.

On April 19, 2005, Clements filed in propria persona a motion to set aside the judgment on the grounds of excusable neglect. Clements pointed out that she had filed a declaration with the court earlier indicating that she was in fear for her life and that she had been “under constant, round the clock surveillance.” She explained that she left San Francisco for approximately two weeks in May 2002 because she “became frightened for my life.” She claimed that she could not leave her home because of “intrusive electronic surveillance.” She mentioned that her extensive research on the computer and elsewhere led her to believe that she was a victim of identity theft; she “strongly suspected“ that Mainardi had “something [to] do with the suspected identity theft . . . .” She also asserted that she sent mail to Willis from December 2002 through December 2004, but she would not let him know where she was located because she “had observed that surveillance had been placed on Mr. Willis in order to track” her location.

Clements declared that Willis “remained working out of my office and living in my house after his motion to withdraw from the dissolution case was granted on June 13, 2003.” She further stated that she depended upon him to respond to her mail and that he never gave her a copy of or informed her about the notice of the case management conference.

When explaining the grounds for vacating or setting aside the judgment, Clements asserted that “[t]he constant, round the clock surveillance in which I have been subjected makes the simplest ‘public’ tasks or errands dangerous for me.” Under her reasons for reopening the case, she maintained that Western Select Securities was her separate property. She complained that she did not just lose “the assets of a business in which I was 100% owner before the marriage[, but also] . . . Mainardi’s possession of Western Select constitutes a misuse of my identity based upon the documentation and research I uncovered in 2002.”

Howard J. Berman became Clements’s attorney of record on June 2, 2005. On that same date, Clements filed a supplemental declaration in support of her motion to set aside the judgment. She stated that she was requesting, among other things, Western Select Securities.

Additionally, Clements submitted on June 2, 2005, a declaration by Psychiatrist Gary Wynbrandt, M.D., in support of her motion to set aside the judgment. He stated that he consulted with Clements for two hours at her home. He opined that she showed no “signs of organic cognitive impairment.” However, according to Wynbrandt, she was “very fearful and concerned about surveillance of her person and home. She remains in her home almost all of the time, leaving only when absolutely necessary. She keeps her windows covered because of this pre-occupation. Ms. Clements related vividly several instances of her being followed in the past. Ms. Clements describes the surveillance as having been even more intense in 2003 and 2004. It would not be surprising to me that she was unable to participate in court proceedings during this time because of her fears. With the assistance of counsel, she should now, however, be able to pursue her legal rights if her case were re-opened.”

On this same date, June 2, 2005, Clements filed a declaration by Willis in support of her motion to set aside the judgment. He stated that Clements’s research uncovered what she believed to be large scale public corruption in the City and County of San Francisco and she directed her firm in 1999 to file a federal civil RICO lawsuit entitled Western Select Securities, Inc. v. City and County of San Francisco Employees Retirement System. In connection with the RICO case, Willis believed that Clements was a “confidential source for the Federal Bureau of Investigation from the middle of December 1998 to the end of May 2000.” He claimed to be present at a meeting with Clements and a special agent of the Federal Bureau of Investigation. Subsequently, according to Willis, Clements, through Western Select Securities, filed another lawsuit in May 2000 against the executive director of the City and County of San Francisco Employees Retirement System. Willis stated that other lawsuits were filed by Clements in her personal capacity.

Willis also declared that he had observed situations in November 2001 where Clements was under surveillance. He specified other instances where he believed the two of them were under surveillance. He asserted that Clements went into hiding, making it impossible for him to contact her.

On June 2, 2005, counsel for Clements filed a memorandum of points and authorities in support of Clements’s motion to set aside the judgment. The points and authorities specified that Clements was seeking relief pursuant to section 473. Clements did not request any relief based on the court’s equitable powers or under the Family Code.

At the hearing on June 21, 2005, the trial court denied Clements’s motion to set aside the judgment. The court explained: “And at this point, given my history with this case and my memory of wife being an intense participant in the proceedings as they went along at the beginning and then suddenly disappearing, and my understanding of her activities with investigations, and so on, and her need to hide, all of those put together tell me that this woman had the availability, the intelligence, the reasoning that would allow her to continue to participate, whether personally or through counsel. She should have been able to, as she participated in all of those other investigations as they were going on. And therefore the request to set aside the judgment that was entered in this case is denied. There isn’t any difficulty with the timing of the motion, but I just don’t see that there was a mistake or a problem in her ability to complete this process and to participate in this process and to have input into the final judgment in this case. So that is the order of the court.”

On August 18, 2005, Clements filed a notice of appeal from an order after judgment. On August 23, 2005, the trial court issued its order denying the motion to set aside the judgment.

DISCUSSION

Clements contends the trial court should have granted her motion to set aside the judgment because the judgment was based on Mainardi’s disclosures, which contained perjury and fraud. Further, she claims the lower court never had jurisdiction over Clements’s separate property. Mainardi responds that much of Clements’s appeal challenges the underlying judgment and is therefore untimely. Accordingly, we must first consider whether we have jurisdiction over the issues raised by this appeal.

I. Jurisdiction

California Rules or Court, rule 2(a) provides that “a notice of appeal must be filed on or before the earliest of: (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, showing the date either was mailed; (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or (3) 180 days after entry of judgment.”

The record in the present case establishes that the clerk of the court mailed the notice of entry of judgment to Clements at her residence in San Francisco on November 17, 2004. The time for filing the notice of appeal of the judgment was therefore in January 2005. Clements filed her notice of appeal on August 18, 2005. Thus, the time to appeal the judgment lapsed and we do not have jurisdiction to consider any challenge to the merits of the underlying judgment. (See, e.g., In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 109-110 (King).)

It is undisputed that Clements’s motion in the lower court to set aside the judgment pursuant to section 473, subdivision (b), was timely. However, Clements filed her notice of appeal on August 18, 2005, and the court issued its formal order denying the motion to set aside the judgment on August 23, 2005. Thus, Clements’s notice of appeal from the post-judgment order was premature.^[2] Nevertheless, we use our discretionary authority under California Rules of Court, rule 2(e), to consider her notice as filed immediately after the court issued its order and therefore timely. Consequently, we have jurisdiction to consider the appeal as it relates to the trial court’s denial of her motion to set aside the judgment pursuant to section 473, subdivision (b).

II. Grounds for Setting Aside the Judgment

Clements’s principal argument is that Mainardi’s disclosures contained perjury and fraudulent statement in violation of Family Code sections 2100 and 2105. As a result, she contends the trial court erred in failing to grant her motion to vacate the judgment order under section 473, subdivision (b), and Family Code section 2105.

Section 473 contains both mandatory and discretionary provisions for relief. The mandatory provision requires a trial court to grant relief from certain adverse decisions, including defaults and default judgments, if the application for relief is accompanied by an attorney’s sworn affidavit attesting to his or her fault, unless the adverse decision was not caused by the attorney’s mistake, inadvertence, or neglect. The discretionary provision permits the court to relieve a party from a judgment entered through that party’s “mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd. (b).) Clements was not represented by an attorney at the time of the default judgment, and therefore she was limited to requesting relief under the discretionary provision.

Thus, Clements was required to establish “mistake, inadvertence, surprise or excusable neglect” in order to obtain discretionary relief. (§ 473, subd. (b).) She now claims, for the first time, that she is also entitled to relief under the court’s inherent equitable powers. She claims that the court set aside a judgment of dissolution under its equitable powers in In re Marriage of Adkins (1982) 137 Cal.App.3d 68, 77 (Adkins) and this case has analogous facts. In Adkins, however, the court noted that section 473 “is very specific in language and narrow in scope, [and] authorize[es] the court only to relieve a party from a judgment taken through mistake, inadvertence, surprise or excusable neglect . . . .” (Adkins, supra, at p. 76.) It pointed out that section 473 “did not vest the trial court with jurisdiction to determine underlying factual issues unrelated to the asserted statutory grounds for vacation of the judgment.” (Adkins, supra, at p. 76.)

Clements’s reliance on Adkins is misplaced. As already noted, the Adkins court emphasized that section 473 provided the court with limited grounds for providing relief. (Adkins, supra, 137 Cal.App.3d at p. 76.) The trial court in Adkins did not provide relief under section 473. Rather, the trial court in Adkins heard evidence of extrinsic fraud and provided an equitable remedy because equitable relief had been expressly requested. (Id. at pp. 76-77.) Here, Clements’s papers in support of her motion to set aside the judgment in the lower court set forth section 473 as the only basis for requesting relief.

Just as Clements did not request equitable relief in the trial court, she also failed to pursue relief pursuant to any provision in the Family Code. She now argues she is entitled to relief pursuant to Family Code sections 2100,^[3] 2120,^[4] and 2105.^[5] However, Clements did not move to vacate the judgment under Family Code sections 2121^[6] and 2122.^[7] Thus, she has waived raising this issue on appeal.^[8]

In the present case, Clements did not request relief pursuant to the Family Code; nor did she request equitable relief. Consequently, the trial court heard no evidence on fraud or perjury. In her request to set aside the judgment, Clements asserted that she could not attend the court hearings because she was afraid and was under surveillance. She claimed that she was unaware of the case management conference and other hearings since Willis was unable to contact her because she had kept her whereabouts secret. She also claimed that she was entitled to the assets of Western Select Securities because “Mainardi’s possession of Western Select constitutes a misuse of my identity based upon the documentation and research I uncovered in 2002.” (Underline omitted.) Other than her own declaration, she presented no argument or evidence of any fraud.

Relief was not requested based on fraud and perjury, and the trial court denied Clements’s motion to set aside the judgment under section 473, subdivision (b). The court found that Clements had the “availability, the intelligence, [and] the reasoning that would allow her to continue to participate, whether personally or through counsel.” The court explained that it did not “see that there was a mistake or a problem in her ability to complete this process and to participate in this process and to have input into the final judgment in this case.”

Accordingly, the sole issue before the trial court was whether Clements had the ability or competence to participate, personally or through her counsel, in the dissolution proceedings. Equitable relief is a factual issue and we will not consider any argument related to this issue for the first time on appeal. (See, e.g., Newton v. Clemons (2003) 110 Cal.App.4th 1, 11.)

III. Standard of Review

The standard for appellate review of an order denying a motion to set aside under section 473 is abuse of discretion. (King, supra, 80 Cal.App.4th at p. 118.) “ ‘ “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ “ [Citations.]’ [Citation.] The burden is on the complaining party to establish abuse of discretion, and the showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion.” (Ibid.)

IV. Perjury and Fraud

Clements asserts that Mainardi committed perjury in his disclosures when, among other things, he stated that he owned Western Select Securities. She also claims that he breached his duty to make full disclosure to Clements regarding all of the community assets. She claims that Mainardi’s accounting contained false and fraudulent claims of community contributions to Clements’s separate property assets. Finally, Clements maintains that this court must set aside this default judgment on equitable grounds, because Mainardi fraudulently misrepresented the character of Clements’s separate property to obtain a judgment.

As already stressed, Clements did not move to set aside the judgment based on extrinsic fraud and she never requested the trial court to provide her a remedy under its equitable powers.^[9] Rather, she moved to set aside the judgment based on her own mistake, inadvertence, surprise, or excusable neglect. Specifically, she moved to set aside the judgment based on her fear of leaving her home because she believed she was under surveillance.

Accordingly, we have no jurisdiction to consider Clements’s argument that the judgment was based on Mainardi’s incorrect or false disclosures. We therefore dismiss that portion of Clements’s appeal contesting any alleged error based on Mainardi’s mistake, fraud, or perjury in his disclosures.

V. Jurisdiction over Separate Property

Clements argues that the trial court exceeded its jurisdiction by disposing of her separate property in its default judgment. She claims that the trial court therefore violated her due process rights. She also argues that public policy requires this court to reverse the trial court to permit her to have her day in court.

Contrary to Clements’s assertions, the trial court had jurisdiction in the dissolution proceeding to determine the nature of the property to be divided and to apportion the community property assets between the parties. (See, e.g., In re Marriage of Dorris (1984) 160 Cal.App.3d 1208, 1215.) The court had Mainardi’s sworn disclosures. Clements failed to present her required disclosures. The court therefore accepted Mainardi’s averments in the disclosures as true and apportioned the community assets between the parties. The court did not exceed its authority in making this determination.

Clements’s remaining argument is that the court’s judgment was erroneous because it was based on Mainardi’s declarations; she claims he classified Clements’s separate property as a community asset. As already emphasized, Clements did not challenge the judgment based on fraud and we do not have jurisdiction to consider the merits of the judgment. We also do not have jurisdiction to reverse the judgment based on public policy grounds.^[10] We therefore dismiss that portion of the appeal related to a challenge to the trial court’s apportionment of the assets.

VI. Clements’s Fear for Her Life

Clements argues that her fear of leaving her home because she believed she was under surveillance prevented her from appearing in court and the court should have granted her motion to set aside the judgment on this basis. We, however, conclude that ample evidence supported the trial court’s ruling and it did not abuse its discretion in denying her motion.

Clements bore the burden of establishing that she was entitled to relief. (King, supra, 80 Cal.App.4th at p. 118.) To support her claim to relief, Clements presented her declaration, Willis’s declaration, and the psychiatrist’s declaration. Both Clements and Willis declared that Clements could not participate in the court because she was hiding. The alleged surveillance also prevented her from remaining in contact with her attorney, Willis. The psychiatrist’s declaration merely stated that Clements told him that she was under surveillance and that it would “not be surprising” to him “that she was unable to participate in court proceedings . . . because of her fears.”

The foregoing evidence does not establish that Clements could not participate in the proceedings. The psychiatrist stated that he believed, “[w]ith the assistance of counsel, she should now, however, be able to pursue her legal rights if her case were re-opened.” Neither Clements nor the psychiatrist provided any explanation for her ability to participate in the legal process now, as contrasted with her alleged inability to participate earlier. No party asserts and Clements presents no evidence that her circumstances have now changed to the extent that she no longer is in fear for her life or that she no longer believes she is under surveillance. Thus, the trial court could properly infer that, if she can participate in legal proceedings now, she could have participated in the trial in November 2004.

Further, the record supported the trial court’s finding that Clements was able to participate in the proceedings and could have attended or retained counsel to attend the trial on November 15, 2004. Clements claimed that no one could communicate with her, but in her declaration she stated that she received correspondence from Mainardi dated June 15, 2004. She also acknowledged receiving notices from Hart, Mainardi’s attorney, in June 2004. More significantly, Clements’s declaration established that she did leave the house during the fall of 2004 when she felt it was necessary to leave and therefore she could have left the house briefly to attend the trial. Clements declared that she “sneaked” out of her house over Labor Day weekend of 2004 and mailed payments for bills. She stated that she left her house to withdraw cash from banks on October 29, 2004. On October 30, 2004, she went to a bank in Saratoga. Subsequently, she left Saratoga, returned to San Francisco, and mailed a certified letter to Willis.

Clements cannot argue mistake, because there is no evidence that she did not know about the date of the trial. Further, she wrote a letter to the court on December 5, 2004, explaining her absence from the trial. Thus, she could have, at that time, filed a timely notice of appeal from the judgment.

Accordingly, we conclude the trial court did not abuse its discretion in denying Clements’s motion to set aside the judgment. Clements’s declaration, Willis’s declaration, and the psychiatrist’s declaration did not establish that she failed to participate in the trial due to her own mistake, inadvertence, surprise, or excusable neglect.

DISPOSITION

The order denying the motion to set aside the judgment is affirmed. Clements is to pay the costs of appeal.

_________________________

Lambden, J.

We concur:

_________________________

Haerle, Acting P.J.

_________________________

Richman, J.

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^[1] All further unspecified code sections refer to the Code of Civil Procedure.

^[2] Neither party raised the issue that Clements’s filing of the notice of appeal was premature.

^[3] Family Code section 2100 reads: “The Legislature finds and declares the following: (a) It is the policy of the State of California (1) to marshal, preserve, and protect community and quasi-community assets and liabilities that exist at the date of separation so as to avoid dissipation of the community estate before distribution, (2) . . . and (3) to achieve a division of community and quasi-community assets and liabilities on the dissolution or nullity of marriage or legal separation of the parties as provided under California law. (b) Sound public policy further favors the reduction of the adversarial nature of marital dissolution and the attendant costs by fostering full disclosure and cooperative discovery. (c) In order to promote this public policy, a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage or legal separation of the parties, regardless of the characterization as community or separate, together with a disclosure of all income and expenses of the parties. Moreover, each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes so that at the time the parties enter into an agreement for the resolution of any of these issues, or at the time of trial on these issues, each party will have a full and complete knowledge of the relevant underlying facts.”

^[4] Family Code section 2120 sets forth the following policy: “The Legislature finds and declares the following: (a) The State of California has a strong policy of ensuring the division of community and quasi-community property in the dissolution of a marriage . . . . These policy goals can only be implemented with full disclosure of community, quasi-community, and separate assets, liabilities, income, and expenses, as provided in Chapter 9 (commencing with Section 2100), and decisions freely and knowingly made. (b) It occasionally happens that the division of property or the award of support, whether made as a result of agreement or trial, is inequitable when made due to the nondisclosure or other misconduct of one of the parties. (c) The public policy of assuring finality of judgments must be balanced against the public interest in ensuring proper division of marital property, in ensuring sufficient support awards, and in deterring misconduct. (d) 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.”

^[5] Family Code section 2105, subdivision (a), provides: “Except by court order for good cause, before or at the time the parties enter into an agreement for the resolution of property or support issues other than pendente lite support, or, if the case goes to trial, no later than 45 days before the first assigned trial date, each party, or the attorney for the party in this matter, shall serve on the other party a final declaration of disclosure and a current income and expense declaration, executed under penalty of perjury on a form prescribed by the Judicial Council, unless the parties mutually waive the final declaration of disclosure. The commission of perjury on the final declaration of disclosure by a party may be grounds for setting aside the judgment, or any part or parts thereof, pursuant to Chapter 10 (commencing with Section 2120), in addition to any and all other remedies, civil or criminal, that otherwise are available under law for the commission of perjury.”

^[6] Family Code section 2121 provides: “(a) 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. (b) 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.”

^[7] Family Code section 2122 states: “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.”

^[8] Clements also did not request relief pursuant to Family Code section 2107, subdivision (d), which provides that when a judgment is entered under circumstances where “the parties have failed to comply with all disclosure requirements, . . . the court shall set aside the judgment. The failure to comply with the disclosure requirements does not constitute harmless error.” Clements’s failure to comply with the disclosure requirements would appear to preclude her from invoking the remedies provided by section 2107. (In re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th 519, 527-528.) Moreover, Clements must at a minimum show prejudice (ibid.) by showing it is reasonably probable she would have obtained a more favorable result had the final declaration of disclosure been received. (See, e.g., In re Marriage of Jones (1998) 60 Cal.App.4th 685, 694-695; see also Steiner, supra, at p. 522 [failure to comply with disclosure statues “does not constitute a ‘get-a-new-trial-free’ card, giving“ a party an automatic right to new trial “when there is no showing of a miscarriage of justice”].) Her simple declaration that she is entitled to property because it was improperly designated as community property does not prove fraud and does not establish that it is reasonably probable she would have obtained a more favorable result.

^[9] As already noted, Clements did not seek relief under Family Code sections 2121 and 2122. These provisions permit the court to provide relief for actual fraud, perjury, duress, mental incapacity, or mistake.

^[10] We note that the public policy argument is extremely weak given that Clements failed to provide disclosures as mandated by the Family Code.