ZAYA v. CHAKER

McINTYRE, J.

In July 2005, the superior court issued a restraining order against Darren D. Chaker pursuant to the Domestic Violence Protection Act (Fam. Code, § 6200 et. seq. (the Act)), requiring him to stay away from Nadine Zaya for a five-year period. He appealed from that order on various grounds, contending in part that Zaya's evidence was insufficient to support its issuance; this court, however, rejected his arguments and affirmed the order.

On remand, Chaker moved to dismiss the order, contending that it resulted from intrinsic fraud, and moved for reconsideration after the dismissal motion was denied. He now appeals these orders, contending that the superior court improperly (1) denied him an evidentiary hearing on the motion to dismiss, (2) failed to rule on his challenge to its jurisdiction to hear this case, and (3) disregarded substantial evidence establishing that the restraining order resulted from fraud. We reject Chaker's arguments, as well as Zaya's request for sanctions, and affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND

On June 15, 2006, Zaya filed a request for a temporary restraining order under the Act against Chaker. (All further dates are in 2006 except as otherwise specified.) In her request, Zaya stated under penalty of perjury that Chaker made threatening calls to her and told her he would harm her or her family if she testified in a pending criminal matter against him. (Zaya v. Chaker (Oct. 19, 2007, D049874) [nonpub. opn.].)

The court issued the temporary restraining order that, among other things, prohibited Chaker from harassing, threatening or contacting Zaya and ordered him to stay at least 100 yards away from her. The order set a July 5 hearing date on Zaya's request that the order be extended for up to five years. After Zaya had Chaker served, an attorney who was apparently representing Chaker in the criminal proceeding sent a courtesy facsimile transmission to the court informing the court that Chaker was in custody and would thus be unavailable to attend the July 5 hearing. (Zaya v. Chaker, supra.)

At the hearing on the extension of the restraining order, the court noted that Chaker had been served with the restraining order and that it had received a letter from an attorney on his behalf indicating that he would not be appearing. Zaya testified that Chaker made threats directly to her to persuade her not to testify in the pending criminal proceeding against him. Based on the evidence before it, the court issued an order extending the expiration date of the restraining order until July 5, 2011. (Zaya v. Chaker, supra.)

Two days later, the attorney sent another facsimile transmission to the court, noting that the hearing had occurred and attaching the original transmission regarding Chaker's incarceration, but not raising any objection to the court's order or making any request for relief. Shortly thereafter, Chaker moved to have the court vacate the five-year restraining order, arguing in part that he was entitled to a continuance of the hearing, that he had been unable to attend the hearing as a result of his incarceration and that the court erred in holding the hearing in his absence. While his motion was pending, Chaker filed a notice of appeal from the court's July 5 order, thus eliminating the court's jurisdiction to rule on the motion. (Zaya v. Chaker, supra., citing Copley v. Copley (1981) 126 Cal.App.3d 248, 298 & Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666.)

On appeal, Chaker contended that the superior court erred in not granting him a continuance of the hearing and in issuing the order based in part on the insufficiency of the evidence to support it. This court rejected his contentions based on the absence of any evidence in the record that he had ever requested that the trial court grant him a continuance of the hearing and based on the evidence submitted by Zaya in support of her application for the restraining order. (Zaya v. Chaker, supra.)

On remand, Chaker moved to dismiss the restraining order on the ground that it was obtained based on intrinsic fraud. Prior to the hearing on the motion, Chaker appeared ex parte, apparently requesting that he be permitted to subpoena witnesses to testify at the hearing. His request was denied. At the hearing, the court denied Chaker's motion to dismiss, concluding that he had not met his burden to establish intrinsic fraud and, even if he had, such fraud did not support a dismissal of the restraining order. Chaker thereafter moved for reconsideration, to which Zaya responded by making a motion for sanctions. The court denied both requests. Chaker appeals and Zaya requests sanctions on the ground that the appeal is frivolous.

DISCUSSION

1. General Principles Governing Attacks on Final Judgments

The doctrine of res judicata generally ensures that a final judgment rendered in an action has conclusive effect and will not be subject to challenge or attack except by a motion, an appeal or the exercise of some other procedural request for relief made in that action. (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 951.) Once such a judgment is entered, the trial court has limited statutory authority to change it within a period of time after its entry. (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1237 & statutory provisions cited therein.) After the expiration of that time, the grounds on which a party may properly seek to attack a judgment, either by motion or by an independent action, are generally limited to challenges that the judgment is void on its face for lack of personal or subject matter jurisdiction, that the court granted relief in excess of its jurisdiction or that the judgment was obtained as a result of extrinsic fraud or mistake. (Estate of Beard (1999) 71 Cal.App.4th 753, 774-775; Armstrong v. Armstrong, supra, 15 Cal.3d at p. 950; 8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, §§ 222-236, pp. 726-750.)

Family Code section 6345, subdivision (a) authorizes the superior court to modify or terminate a restraining order issued pursuant to the Act on the motion of a party subject thereto. Chaker, however, did not seek relief under that statutory provision; instead he sought to challenge the credibility of the evidence offered in support of the restraining order against him, arguing that the order should be dismissed on the basis of intrinsic fraud. The parties and the superior court have proceeded on the assumption that the principles cited above are applicable here despite the absence of a final judgment; we accept this assumption, without deciding the point, in resolving this appeal.

2. Denial of an Evidentiary Hearing on the Motion to Dismiss

Chaker contends that the superior court denied his due process rights in refusing to allow him to call witnesses at the hearing on his motion to dismiss the restraining order. In particular, he contends that when the court denied his ex parte request to subpoena witnesses, it did so because it knew he was entitled to call such witnesses without the necessity of an order.

On appeal, "'[a] judgment or order of the lower court is presumed correct . . .'" and "[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent . . . ." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics in original.) "This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Ibid.) Thus, an appellant must overcome the presumption of correctness of a court's judgment or order and is responsible for providing a record adequate to establish that error occurred. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337; Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

Here, the record before us does not include Chaker's ex parte papers submitted in support of what appears to have been a request by him to subpoena witnesses to testify at the dismissal motion hearing, nor does the ex parte minute order set forth the basis on which the court denied his request. Moreover, the record does not include a reporter's transcript of the ex parte hearing.

Chaker, however, points to a memorandum that he submitted to the court, unrelated to any pending hearing and lacking any court file stamp, as support for his contention about what happened at the ex parte hearing. Given that the court may never have even seen this memorandum and that it certainly was never asked to verify the memorandum's content, that document is not competent to establish what actually happened at the hearing. Absent any indication in the record as to what Chaker specifically requested or the basis for the court's denial of that request, we must presume that the superior court acted properly in making its ruling.

3. Chaker's Jurisdictional Challenge

A judgment or order is void where the issuing court lacked jurisdiction in the "fundamental sense" (that is, the court lacked subject matter jurisdiction over the cause and/or personal jurisdiction over a party to the dispute). (Conservatorship of O'Connor (1996) 48 Cal.App.4th 1076, 1088 & cases cited therein; see generally Armstrong v. Armstrong, supra, 15 Cal.3d at p. 950.) Chaker contends that the superior court lacked jurisdiction to rule on Zaya's request for a restraining order because, despite Zaya's declaration to the contrary, he did not reside in the eastern judicial district of San Diego County at that time.

We cannot discern Chaker's precise argument, i.e., whether he is contending that Zaya should have filed her application in some other branch of the San Diego Superior Court or in the superior court in some other county in California. Either way, however, Chaker's argument confuses the issue of whether the superior court in this case had subject matter jurisdiction over Zaya's application and personal jurisdiction over him, on one hand, with the issue of where the proceeding should have occurred (i.e., one of venue), on the other.

Here, the superior court clearly had subject matter jurisdiction over Zaya's application for a restraining order (Fam. Code, § 6300) and, as a result of Chaker's general appearance in the action, it also had personal jurisdiction over him. (Code Civ. Proc., § 410.50, subd. (b); Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 52.) By failing to seek to transfer this action in a timely fashion, Chaker essentially consented to venue in the superior court where Zaya filed her application (Code Civ. Proc., § 396b, subd. (a); 3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 840, pp. 1065-1066); even if he had not impliedly consented, he cites no authority establishing that a defect relating to venue of the action would support a reversal of the restraining order. Accordingly, there is no need to remand the matter to the trial court to consider the jurisdictional issue.

4. Sufficiency of the Evidence to Establish Fraud

A. Request for Judicial Notice

As a preliminary matter, Chaker requests that we take judicial notice of two transcripts of testimony by Zaya, which he contends show that Zaya's statements in support of her application for the restraining order were perjurious. However, this court has previously issued an order granting Chaker's request to lodge these same transcripts in support of his appeal. Consequently, his current request for judicial notice of these documents is moot.

B. The Merits of Chaker's Fraud Challenge

Although a court has equitable jurisdiction to set aside a judgment based on extrinsic fraud (Olivera v. Grace (1942) 19 Cal.2d 570, 575), one who challenges a judgment on that basis must show that by virtue of the fraud he was "' . . . deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.' [Citation.]" (Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1044.) "Fraud is intrinsic and not a valid ground for setting aside a judgment when the party has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary . . . ." (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 140, quoting In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1069.) Except in limited circumstances not present here, a party's introduction of perjured testimony or false documents or its concealment of material evidence constitutes intrinsic rather than extrinsic fraud and thus will not support a collateral attack on the resulting judgment or order. (E.g., Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1532; Kachig v. Boothe (1971) 22 Cal.App.3d 626, 634; Jorgensen v. Jorgensen (1948) 32 Cal.2d 13, 19-20.)

Here, Chaker's motion to dismiss the restraining order against him was based on the contention that the order was obtained by "intrinsic fraud," i.e., Zaya's introduction of allegedly perjured testimony, not that any fraud by Zaya precluded him from appearing at the hearing on her application for a restraining order. In accordance with the principles discussed above, however, intrinsic fraud does not provide a basis for setting aside the order. (See also In re Marriage of Melton (1994) 28 Cal.App.4th 931, 937-938 ["Fraud is intrinsic and not a valid ground for setting aside a judgment when the party has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary, but has unreasonably neglected to do so"].) Accordingly, the superior court did not err in denying Chaker's motion to dismiss the restraining order against him.

5. Zaya's Request for Monetary Sanctions

Pursuant to Code of Civil Procedure section 907 and California Rules of Court, rule 8.276(e), Zaya asks this court to award her monetary sanctions of $4,500 (which includes $1,500 Zaya incurred in opposing Chaker's motions in the superior court) against Chaker for pursuing a frivolous appeal. Generally, "[a]n appeal is sanctionable as frivolous when it is prosecuted for an improper motive to harass the respondents or delay the effect of an adverse judgment, or where it indisputably is totally and completely without merit." (Weber v. Willard (1989) 207 Cal.App.3d 1006, 1009-1010.)

The first test for frivolousness is subjective, requiring a determination as to whether the appeal is being prosecuted solely for an improper motive, such as to harass the respondent or delay the effect of an adverse judgment. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650.) The second test is objective, requiring a determination of whether the appeal is so indisputably without basis "that any reasonable attorney would agree it was totally devoid of merit[.]" (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1766, 1773.)

Sanctions are to be used sparingly, only to deter the most egregious conduct, "so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) While we agree with Zaya that Chaker's appeal lacks merit, and that certain aspects of the appeal could well be deemed frivolous, we are unable to conclude that the appeal as a whole is "so utterly devoid of potential merit as to justify sanctions." (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1112.)

DISPOSITION

The orders are affirmed. The motion for sanctions is denied. Zaya is awarded her costs of appeal.

WE CONCUR:

BENKE, Acting P.J.

NARES, J.