Filed 8/26/15 Mnyandu v. Los Angeles Unified School Dist. CA2/4
               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR




PAMELA TINKY MNYANDU,                                                B260463
                                                                     (Los Angeles County
              Plaintiff and Appellant,                               Super. Ct. No. EC053872)

v.

LOS ANGELES UNIFIED SCHOOL
DISTRICT et al.,

              Defendants and Respondents.


         APPEAL from an order of the Superior Court of Los Angeles County,
Donna Fields Goldstein, Judge. Affirmed.
         Pamela Tinky Mnyandu, in pro. per., for Plaintiff and Appellant.
         Office of General Counsel, Charlie L. Hill, Assistant General Counsel and
Alexander Molina, Chief Labor & Employment Counsel, for Defendants and
Respondents.
         Appellant Pamela Tinky Mnyandu challenges the denial of her motion
under Code of Civil Procedure section 473, subdivision (d), which sought to
vacate a prior order and the judgment entered in the action as void.1 The targeted
order was the trial court’s denial of appellant’s prior motion under section 473,
subdivision (d), which also had attacked the judgment as void. In denying
Mnyandu’s second section 473 motion, the court concluded that appellant had
failed to show the prior order and judgment were void. We affirm the ruling on
the second section 473 motion.


          RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
      This is the third time we have addressed an appeal arising out of the
underlying action. We begin by reciting the relevant facts regarding the previous
appeals, as found in our prior opinions.
      In August 2010, Mnyandu initiated the underlying action against her
employer, respondent Los Angeles Unified School District (LAUSD), and
respondent John McLaughlin. She asserted claims against LAUSD under the
California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900
et seq.) for discrimination based on national origin, harassment, and retaliation. In
addition, she asserted claims for assault, civil battery, and intentional infliction of
emotional distress against McLaughlin. The claims were predicated on allegations
that, inter alia, McLaughlin made false and derogatory criticisms of Mnyandu’s
work, harassed her, and grabbed her hand, causing her physical injury.
      On January 13, 2012, the trial court granted respondents’ motion for
summary judgment on Mnyandu’s claims. On February 1, 2012, the court entered
a judgment in favor of respondents and against appellant, from which Mnyandu
noticed a timely appeal. On appeal, she argued that after the trial court ruled on


1     All further citations are to the Code of Civil Procedure.

                                            2
the summary judgment motion, she obtained additional evidence, including
testimony from McLaughlin and other LAUSD employees in an unspecified
criminal action against her, that purportedly contradicted respondents’ showing in
support of the summary judgment motion. In affirming the judgment in an
unpublished opinion (Mnyandu v. Los Angeles Unified School District (May 1,
2013, B239104)), we declined to consider that evidence because it had never been
presented to the trial court. We explained that to attack a grant of summary
judgment on the basis of new evidence, a party ordinarily must seek a new trial or
similar relief from the trial court, which Mnyandu had not done.
       On May 28, 2013, after our opinion was filed, Mnyandu submitted a motion
under section 473, subdivision (d), to set aside the judgment as void on the ground
of extrinsic fraud. The motion contended that in seeking summary judgment,
respondents’ counsel suborned perjury by submitting declarations from
McLaughlin and other witnesses that were contradicted by their testimony in a
criminal action, People v. Mnyandu (Los Angeles County Superior Court Case No.
BA387119). Supporting the motion were excerpts from the reporter’s transcript in
the criminal action, together with Mnyandu’s declaration and declarations from
Wendi Cowan and Lori Cole, who stated that from 2008 to 2010, they were
percipient witnesses to certain events relevant to Mnyandu’s claims against
respondents.2



2      Although appellant’s current appeal challenges the trial court’s denial of a motion
to vacate the ruling regarding the May 28, 2013 motion, the minimal record she has
provided does not contain the May 28, 2013 motion or the ruling on it. We augment the
record to include the May 28, 2013 motion, respondents’ opposition, appellant’s reply,
and the minute order dated June 26, 2013 denying the motion. (Cal. Rules of Court, rule
8.155(a)(1)(A).)

                                             3
      Respondents opposed the motion on several grounds, including that
Mnyandu failed to establish extrinsic fraud. They argued that because Mnyandu
maintained that the summary judgment had been procured by means of perjured
declarations, she alleged only intrinsic fraud, which was insufficient to render the
judgment void.
      On June 26, 2013, prior to the issuance of our remittitur, the trial court
denied the section 473 motion to vacate the judgment, concluding that Mnyandu
had not shown that the judgment was void. The court further determined that the
motion amounted to an untimely motion for reconsideration (§ 1008), and that
appellant’s notice of appeal from the judgment divested it of jurisdiction to
consider such a motion. Appellant filed no notice of appeal from the June 26,
2013 order.
      In October 2013, Mnyandu filed a motion for a new trial, asserting the
grounds of “[i]rregularity (fabrication of evidence) by [respondents’] counsel” and
newly discovered evidence (§ 657, subds. (1), (4)). The motion contended that
respondents’ counsel fabricated evidence to support the summary judgment
motion by submitting perjured declarations from McLaughlin and other witnesses.
In support of that contention, Mnyandu pointed primarily to testimony from
McLaughlin in an action before the Workers’ Compensation Appeals Board
(WCAB), Mnyandu v. Los Angeles Unified School District (WCAB Case Nos.
ADJ7325988 & ADJ7329616), as well as certain determinations by the
administrative law judge and the WCAB in that proceeding. On November 27,
2013, the trial court denied the new trial motion because it had been filed after the
statutory deadline for such motions.
      In January 2014, Mnyandu noticed an appeal from the November 27, 2013
order. Her subsequent appellate briefing challenged both the June 26, 2013 order

                                          4
and the November 27, 2013 order. On October 8, 2014, we dismissed that appeal,
concluding that the November 27, 2013 order was not appealable, and that the
notice of appeal was untimely with respect to the June 26, 2013 order.
      On October 14, 2014, Mnyandu filed her second motion under section 473,
subdivision (d), which attacked the June 26, 2013 order and the judgment as void.
Supporting the motion was Mnyandu’s declaration, which maintained that the first
section 473 motion “remain[ed] pending” because the trial court had determined
that it lacked jurisdiction to consider the motion.
      On October 31, 2014, the trial court denied Mnyandu’s second section 473
motion on grounds that closely tracked its June 26, 2013 ruling. The court
concluded that neither section 473 motion demonstrated that the judgment was
void, and that the first section 473 motion had amounted to an untimely motion for
reconsideration over which the court lacked jurisdiction during the pendency of
the first appeal. The court’s order further stated: “[Mnyandu’s] repeated motions
to set aside a judgment that has been affirmed on appeal is frivolous. [Mnyandu]
is advised that if she continues to file such frivolous motions the Court may
consider issuing an Order to Show Cause why [Mnyandu] should not be declared a
vexatious litigant.” This appeal followed.


                                   DISCUSSION
      Mnyandu’s principal contention is that the trial court erred in denying her
second section 473 motion because the showing submitted in connection with her
first section 473 motion established that the February 2012 judgment is void. In
support of that contention, she argues that the judgment was the product of fraud
on the court. Mnyandu also presents several related contentions, including that the
trial court incorrectly determined that her first section 473 motion was effectively

                                          5
a motion for reconsideration over which it lacked jurisdiction. For the reasons
discussed below, we reject her contentions.


       A. Principles Governing Our Review
       We begin by setting forth the standards applicable to our review of the trial
court’s ruling and the scope of our inquiry. Mnyandu’s second section 473
motion, from which she noticed the current appeal, asserted that her first section
473 motion sought to “set aside a void judgment which was procured by extrinsic
fraud by [respondent’s counsel].” (Caps deleted.) The second motion further
challenged the denial of the first section 473 motion as void on the ground that it
gave effect to the void judgment. Our review is thus subject to the principles
applicable to attacks on judgments and orders as void due to extrinsic fraud.
       Void judgments are ineffective and unenforceable. (County of San Diego v.
Gorham (2010) 186 Cal.App.4th 1215, 1226 (County of San Diego).) For that
reason, an order incorrectly denying relief from a void judgment is also void, as it
gives effect to the judgment. (Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691.)
A judgment may be shown to be void “on its face” -- that is, without going outside
the record or judgment roll -- or on the basis of extrinsic evidence, that is,
evidence not included in the record or judgment roll relating to the judgment. 3
(Id. at p. 696.) A judgment is void on its face when the record shows that the trial
court lacked subject matter jurisdiction or personal jurisdiction over the parties, or
granted unauthorized relief. (Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d
489, 493.) In contrast, as elaborated below (see pt. C. post), establishing that a

3      “The judgment roll consists of the pleadings and certain other formal papers filed
with the clerk of the trial court.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 667,
p. 738.)

                                             6
judgment is void due to extrinsic fraud ordinarily requires the presentation of
evidence not found in the record. (Munoz v. Lopez (1969) 275 Cal.App.2d 178,
183-184.) Here, as the trial court noted, the section 473 motions did not attempt to
show that the February 2012 judgment was void on its face, but instead relied on
extrinsic evidence submitted by Mnyandu after the entry of the judgment to
establish the purported extrinsic fraud.
      To demonstrate that a judgment valid on its face is void, a party may file a
motion to vacate the judgment in the pertinent action or an independent action in
equity. (Preston v. Wyoming Pac. Oil Co. (1961) 197 Cal.App.2d 517, 527.)
Here, Mnyandu chose to attack the judgment by means of motions under section
473, subdivision (d), which provides in pertinent part: “The court . . . may, on
motion of either party after notice to the other party, set aside any void judgment
or order.” That provision permits a party to seek relief from a judgment on the
ground that it was procured by extrinsic fraud. (Department of Industrial
Relations v. Davis Moreno Construction, Inc. (2011) 193 Cal.App.4th 560, 570
(Department of Industrial Relations). )
      Generally, a section 473 motion to vacate a judgment as void due to
extrinsic fraud is not governed by any statutory time limit, but is addressed to the
trial court’s inherent equity power to grant relief from a judgment arising from
extrinsic fraud. (Department of Industrial Relations, supra, 193 Cal.App.4th at
p. 570.) The trial court’s denial of such a motion is reviewed for an abuse of
discretion. (Talley v. Valuation Counselors Group, Inc. (2010) 191 Cal.App.4th
132, 146; County of San Diego, supra, 186 Cal.App.4th at p.1230.) Under that
standard, we examine the court’s factual findings for the existence of substantial
evidence, but review its legal determinations de novo. (County of San Diego,
supra, 186 Cal.App.4th at p. 1230.)

                                           7
      In denying the second section 473 motion, the trial court was not obliged to
consider grounds for relief not raised by Mnyandu. (Luri v. Greenwald (2003)
107 Cal.App.4th 1119, 1125.) Similarly, under established appellate principles,
our review of the denial of the second section 473 motion is limited to matters
before the trial court when it considered the motion. (Reserve Insurance Co. v.
Pisciotta (1982) 30 Cal.3d 800, 813; Shoemaker v. County of Los Angeles (1995)
37 Cal.App.4th 618, 634, fn. 17.) As our Supreme Court has explained, that rule
“preserves an orderly system of appellate procedure by preventing litigants from
circumventing the normal sequence of litigation.” (Reserve Insurance Co. v.
Pisciotta, supra, 30 Cal.3d at p. 813.) Thus, documents and other evidentiary
material not before the trial court when it issued its ruling ordinarily are
disregarded on appeal. (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d
622, 631-632.) Furthermore, events occurring after the order generally are
irrelevant to an appeal from that order. (Lewis v. Hankins (1989) 214 Cal.App.3d
195, 200-201.) Accordingly, the focus of our inquiry is on the matters presented
in connection with Mnyandu’s second section 473 motion.
      On appeal, Mnyandu asserts numerous contentions of extrinsic fraud
regarding the February 2012 judgment based on events relating to the WCAB
proceedings not reflected in the records of her appeals from the judgment or the
section 473 motions. She suggests that her current appeal constitutes a collateral
attack on the judgment, and that she therefore may assert new contentions of
extrinsic fraud on appeal, regardless of whether they were submitted to the trial
court in connection with her second section 473 motion. We disagree.
      Because Mynandu’s attacks on the judgment are “direct,” not collateral, she
may not rely on evidence not presented to the trial court. Generally, a collateral
attack on a judgment as void is available only when the judgment is void on its

                                           8
face. (Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308,
1327.) However, as explained above, Mnyandu’s section 473 motions attacking
the judgment as void relied on extrinsic evidence not found in the record relating
to the judgment. Similarly, her new assertions on appeal purport to rely on such
evidence. Her section 473 motions constitute direct attacks on the judgment
(Greene v. Superior Court (1961) 55 Cal.2d 403, 405), as do her new assertions on
appeal (see Schwab v. Southern California Gas Co., supra, 114 Cal.App.4th at
p. 1327).4 Because we do not consider additional evidence on appeal absent
extraordinary circumstances Mnyandu has not attempted to establish (Monsan
Homes, Inc. v. Pogrebneak (1989) 210 Cal.App.3d 826, 831; § 909), in order to
present a new challenge to the judgment as void based on additional extrinsic
evidence, she must assert that challenge in a direct attack before the trial court,
that is, by a motion to vacate the judgment or an independent action in equity
(Gonzales, supra, 68 Cal.App.3d at p. 632).5

4      As explained in Gonzales v. State of California (1977) 68 Cal.App.3d 621, 632
(Gonzales), reversed on another ground in City of Stockton v. Superior Court (2007) 42
Cal.4th 730, 740: “A direct attack is a proceeding instituted for the specific purpose of
vacating, reversing, or otherwise attacking the judgment as by . . . motion to vacate,
appeal, an independent action in equity, and by certiorari or other writs. [Citations.] A
collateral attack is made, not in a proceeding brought for the specific purpose of attacking
the judgment, but in some other proceeding having a different purpose -- it is an attempt
to avoid the effect of a judgment or order made in some other proceeding. [Citations].”
5      Following the close of briefing in the current appeal, Mnyandu submitted motions
for leave to file supplemental briefs that addressed events in the WCAB proceeding
related to her claims against respondents. The motions also seek consolidation of the
current appeal with an appeal arising of the WCAB proceeding (B260131), and request
judicial notice of documents related to that appeal.
      For the reasons discussed above, we deny those motions. Leave to file the
supplemental briefs was denied because their focus was on events in the WCAB
proceeding never raised before the trial court in the underlying action. Similarly, as the
documents for which Mnyandu sought judicial notice were not presented to the trial court,
(Fn. continued on next page.)
                                             9
       B. Appealability
       At the outset, we address respondents’ contention that the denial of
Mnyandu’s second section 473 motion is not appealable. That contention relies on
the principle that the denial of a motion to vacate a prior appealable judgment or
order is not itself an appealable order. (9 Witkin, Cal. Procedure (5th ed. 2009)
Appeal, § 197, pp. 273-274.) The rationale of the principle is that “[i]f the prior
judgment or order was appealable, and the grounds on which vacation is sought
existed before the entry of judgment, the correctness of the judgment should be
reviewed on an appeal from the judgment itself. To permit an appeal from the
order refusing to vacate would give the aggrieved party two appeals from the same
decision . . . .” (Id. at p. 274.)
       The principle is subject to an exception applicable here. As Witkin
explains, “it has become an established rule that an appeal lies from the denial of a
statutory motion to vacate an appealable judgment or order, i.e., from denial of a
motion made under [sections] 473, 473.5, or 663.” (9 Witkin, supra, § 200,
p. 276.) Under that rule, a party may appeal from the denial of a second section
473 motion that attacks a judgment on the same grounds as a prior section 473
motion that was also denied, even though no timely appeal was taken from the first
denial. (Carver v. Platt (1960) 179 Cal.App.2d 140, 142-144 (Carver).)
       In Carver, following a jury verdict, a judgment was entered against the
plaintiff and in favor of the defendants in a wrongful death action. No appeal was
noticed from the judgment, which became final. (Carver, supra, 179 Cal.App.2d

we declined to take notice of them. Furthermore, consolidation of the appeal was denied
because the appeal arising out of the WCAB proceeding was dismissed by Division Eight
of the Second Appellate District on June 18, 2015.

                                          10
at pp. 142-144.) The plaintiff filed a section 473 motion for relief from the
judgment on the grounds of “mistake,” namely, instructional errors, which the trial
court denied. (Ibid.) Later, the plaintiff filed what was effectively a second
section 473 motion, seeking reconsideration of the prior ruling. (Ibid.) Following
the denial of the second motion, the plaintiff noticed an appeal from the denials
that was timely only with respect to the second ruling. (Ibid.) The appellate court
concluded that the second denial was appealable because more than one section
473 motion is permitted. (Id. at pp. 142-143.) In view of Carver, we conclude
that the denial of Mnyandu’s second section 473 motion is appealable.6


       C. No Showing of Extrinsic Fraud
       We turn to Mnyandu’s central contention, namely, that in ruling on the
second section 473 motion, the trial court erred in declining to vacate the February
2012 judgment, which Mnyandu argues was void due to “fraud on the court.” The
key issue is whether she established extrinsic fraud, for purposes of setting aside
the judgment as void.
       Equitable relief from a judgment as void due to fraud is proper only when
the fraud is “extrinsic,” rather than “‘intrinsic.’” (Kulchar v. Kulchar (1969) 1
Cal.3d 467, 471-472 (Kulchar).) As our Supreme Court has explained, the
rationale for this rule is that “there must be an end of litigation”: “[W]hen parties


6       Payne v. Rader (2008) 167 Cal.App.4th 1569 and Lawson v. Guild (1932) 215 Cal.
378, upon which respondents rely, are distinguishable, as neither addressed the
appealability of a section 473 motion asserting a potentially valid ground for relief under
that statute. (Payne v. Rader, supra, 167 Cal.App.4th at p. 1576 [denial of section 663
motion asserting claim for relief unavailable under section 663 was not appealable;
Lawson v. Guild, supra, 215 Cal. at p. 381 [denial of nonstatutory motion to vacate
judgment was not appealable].)

                                            11
have once submitted a matter, or have had the opportunity of submitting it, for
investigation and determination, and when they have exhausted every means for
reviewing such determination in the same proceeding, it must be regarded as final
and conclusive, unless it can be shown that the jurisdiction of the court has been
imposed upon, or that the prevailing party, by some extrinsic or collateral fraud,
has prevented a fair submission of the controversy.” (Pico v. Cohn (1891) 91 Cal.
129, 133.)
      “Extrinsic fraud usually arises when a party is denied a fair adversary
hearing because he has been ‘deliberately kept in ignorance of the action or
proceeding, or in some other way fraudulently prevented from presenting his claim
or defense.’ [Citation.] ‘Where the unsuccessful party has been prevented from
exhibiting fully his case, by fraud or deception practiced on him by his opponent,
as by keeping him away from court, a false promise of a compromise; or where the
defendant never had knowledge of the suit, being kept in ignorance by the acts of
the plaintiff; or where an attorney fraudulently or without authority assumes to
represent a party and connives at his defeat; or where the attorney regularly
employed corruptly sells out his client’s interest to the other side, -- these, and
similar cases which show that there has never been a real contest in the trial or
hearing of the case, are reasons for which a new suit may be sustained to set aside
and annul the former judgment or decree, and open the case for a new and a fair
hearing.’ [Citation.]” (Kulchar, supra, 1 Cal.3d at p. 471.)
      In contrast, intrinsic fraud merely “goes to the actual merits of the litigation.
Unlike ‘extrinsic’ fraud, it does not preclude any party from raising a claim or
defense; nor does it prevent a party from knowing about or attending a proceeding.
[Citations.]” (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15,
41.) Intrinsic fraud “cannot be used to overthrow a judgment, even where the

                                          12
party was unaware of the fraud at the time and did not have a chance to raise it at
trial.” (Pour Le Bebe, Inc. v. Guess? Inc. (2003) 112 Cal.App.4th 810, 828.)
      Intrinsic fraud encompasses the admission of perjured testimony by parties
to the action, even when accompanied by assertions that their counsel participated
in a conspiracy to secure the judgment. As this court has observed, “the
introduction of perjured testimony is a classic example of intrinsic fraud.” (Buesa
v. City of Los Angeles (2009) 177 Cal.App.4th 1537, 1546.) Allegations that
parties and their counsel conspired to misrepresent facts ordinarily do not state a
theory of extrinsic fraud (American Borax Co. v. Carmichael (1954) 123
Cal.App.2d 204, 208 [alleged misrepresentation by parties’ counsel regarding title
to property in pre-trial proceedings was not extrinsic fraud]), unless the
misrepresentations precluded a party from defending its rights in litigation
(Harada v. Fitzpatrick (1939) 33 Cal.App.2d 453, 455, 459 [conspiracy involving
lessor, attorney, and others to dispossess lessee without due notice by means of
false representations to trial court constituted “extrinsic fraud on the trial court”].)
      Here, Mnyandu’s evidentiary showing regarding extrinsic fraud was
submitted in connection with her first section 473 motion, which alleged that
respondents’ counsel deliberately misled the trial court by presenting perjured
declarations. She relied on her own declaration, which asserted that to support
respondents’ summary judgment motion, respondents’ counsel submitted
declarations from several witnesses, including McLaughlin, that counsel knew
contained perjury. Mnyandu also submitted excerpts from McLaughlin’s
testimony in the criminal action involving her, which occurred August 2012;
declarations executed shortly after the February 2012 judgment from Wendi
Cowan and Lori Cole, who described certain events that occurred from 2008 to
2010 in terms favorable to Mnyandu’s claims; and records of Mnyandu’s phone

                                           13
calls in April 2010. In addition, Mnyandu provided an excerpt from the reporter’s
transcript of the criminal action, which reflects the trial court’s determination that
the prosecution’s witnesses were “impeached with prior inconsistent statements.”
       In ruling on the second section 473 motion, the trial court reaffirmed its
prior determination that Mnyandu had not shown that the judgment was void. We
agree with that conclusion, as Mnyandu’s evidence failed to establish extrinsic
fraud in connection with respondents’ motion for summary judgment. Nothing in
her showing suggests that she was “‘deliberately kept in ignorance of the action or
proceeding, or in some other way fraudulently prevented from presenting h[er]
claim or defense.’” (Kulchar, supra, 1 Cal.3d at p. 471.) Mnyandu’s evidence
amounts merely to an attempt to show that respondents and their counsel
knowingly submitted perjured testimony to secure summary judgment, which
constitutes intrinsic fraud.7
       Mnyandu’s reliance on Hazel-Atlas Glass Co. v. Hartford-Empire Co.
(1944) 322 U.S. 238 (Hazel-Atlas Glass), disapproved on another ground in
Standard Oil Co. of Cal. v. United States (1976) 429 U.S. 17, 18, fn. 2, is
misplaced. There, a company applied for a patent regarding a method of pouring

7      Although Mnyandu’s second section 473 motion did not request that the trial court
review its prior ruling in light of the evidence she submitted to support her October 2013
new trial motion, that evidence also does not establish extrinsic fraud. In connection with
the new trial motion, which asserted that respondents’ counsel fabricated evidence to
secure summary judgment, Mnyandu submitted an excerpt from McLaughlin’s and
Cowan’s testimony in the WCAB proceeding. Mnyandu also submitted copies of
declarations that respondents filed in seeking summary judgment, which she had
annotated to identify what she regarded as false statements. In addition, Mnyandu
submitted LAUSD’s petition for reconsideration in the WCAB proceeding, which
challenged the administrative law judge’s findings that Mnyandu had suffered a physical
injury and that McLaughlin’s criticisms of her had occurred outside any “personnel
action,” as well as the WCAB’s rejection of that petition. For the reasons discussed
above, the new trial motion amounted only to an attempt to show intrinsic fraud.

                                            14
glass. (Hazel-Atlas Glass, supra, 322 U.S. at p. 240.) To establish that the
method was novel, the application relied on a published article that had been
written by the company’s attorneys and falsely attributed to an expert. (Ibid.)
After obtaining the patent, the company sued a third party for patent infringement
regarding the process. (Id. at pp. 241-242.) Relying on the falsified article, the
company secured a judgment in its favor after a trial and appeal. (Id. at p. 243.) In
order to conceal the deception regarding the falsified article, the company bribed
the expert to state that he had written the article and to lie to the third party’s
investigators. (Ibid.) Approximately 10 years later, the third party discovered the
deception regarding the article and brought an action to declare the judgment void.
(Ibid.) In concluding that the circumstances compelled relief from the judgment,
the United States Supreme Court determined that the resolute and lengthy
fraudulent scheme effectively precluded the third party from establishing its rights
to the method of pouring glass. (Id. at p. 250.) The court stated: “This is not
simply a case of a judgment obtained with the aid of a witness who, on the basis of
after-discovered evidence, is believed possibly to have been guilty of perjury. . . .
[W]e find a deliberately planned and carefully executed scheme to defraud not
only the Patent Office but the Circuit Court of Appeals.” (Id. at pp. 245-246.)
      In our view, the situation here is of the type that the court in Hazel-Atlas
Glass recognized does not render a judgment void. The gravamen of Mnyandu’s
theory of fraud on the court is that respondents submitted perjured declarations in
order to secure summary judgment, which constitutes intrinsic fraud. Her
additional allegation that respondent’s counsel solicited or arranged for the
perjured declarations adds nothing material to the theory, as counsel’s alleged
misconduct did not in any way augment the task Mnyandu confronted in opposing



                                           15
summary judgment. Because that purported misconduct imposed no additional
burden on Mnyandu, it cannot elevate her theory to one of extrinsic fraud.8
       Mnyandu contends the trial court, in ruling on her second section 473
motion, erred in reaffirming its determination that her first section 473 motion
amounted to a motion for reconsideration (§ 1008) over which the court had no
jurisdiction while Mnyandu’s appeal from the judgment was pending. We
disagree.9 Generally, during the pendency of an appeal from a judgment, the trial
court lacks jurisdiction to alter or modify the judgment “by conducting
. . . proceedings that may affect it.” (Betz v. Pankow (1993) 16 Cal.App.4th 931,
938.) However, an exception to that rule arises when the judgment is void, and
may be set aside by the trial court notwithstanding the appeal. (Ibid.)




8      The other decisions upon which Mnyandu relies are distinguishable or inapposite.
In three of the cases, the reviewing court concluded that a theory of extrinsic fraud was
adequately stated because service of the summons in the pertinent action was defective
(Peralta v. Heights Medical Center, Inc. (1988) 485 U.S. 80, 85-87; Bennett v. Wilson
(1898) 122 Cal. 509, 511-517) or because a judge who participated in the action had been
bribed (Root Refining Co. v. Universal Oil Products Co. (3d. Cir. 1948) 169 F.2d 514,
534). Those extraordinary circumstances have not been established here.
       The remaining decisions provide no support for Mnyandu’s contention. In four of
the cases, the reviewing court rejected a claim of extrinsic fraud. (United States v.
Throckmorton (1878) 98 U.S. 61, 69-70; Bulloch v. U.S. (10th Cir. 1985) 763 F.2d 1115,
1121-1122; Kenner v. C.I.R. (7th Cir. 1968) 387 F.2d 689, 691-692; Regenold v. Baby
Fold, Inc. (Ill. 1977) 68 Ill.2d 419, 432-433 [369 N.E.2d 858, 863-864].) The other
decisions involved criminal or disciplinary actions against an attorney, and contain no
discussion of a claim of extrinsic fraud. (U.S. v. Holland (11th Cir. 1994) 22 F.3d 1040,
1042; In re Armentrout (Ill.1983) 99 Ill.2d 242, 244-256 [457 N.E.2d 1262, 1263-1269];
In re Lamberis (Ill.1982) 93 Ill.2d 222, 224-230 [443 N.E.2d 549, 550-553].)
9      We note with disapproval that Mnyandu’s contention relies on an unpublished
decision that is not citable, absent circumstances she has not demonstrated. (Cal. Rules of
Court, rules 8.1115(a) & 8.1115(b).)

                                            16
        In view of that exception, we see no error in the trial court’s determinations
regarding the first section 473 motion. When presented with that motion, the court
had sufficient jurisdiction to decide whether it had jurisdiction to grant the motion,
notwithstanding the appeal. (See 2 Witkin, Cal. Procedure (5th ed. 2008)
Jurisdiction, § 339, pp. 963-965.) Upon determining that the motion failed to
show that the judgment was void, the court reasonably regarded it as merely a
motion for reconsideration over which it lacked jurisdiction, and denied it for that
reason.10
        D. Remaining Contentions
        Pointing to the WCAB proceedings and the criminal action, Mnyandu
asserts that under the doctrines of judicial and collateral estoppel, respondents may



10     We therefore reject Mnyandu’s contention that the trial court’s ruling on the first
section 473 motion was “void” due to certain alleged procedural irregularities
surrounding the ruling on the first motion. Pointing to her declaration in support of the
second section 473 motion, she argues that the trial court entered the order without a
proper hearing, which denied her due process. That declaration states that on June 26,
2013, she presented herself for a hearing on the first section 473 motion, but the trial
court “refused to hear the matter.”
        Mnyandu’s contention fails, as the record demonstrates that the trial court, in fact,
conducted a hearing on the first section 473 motion, but correctly determined that it
ultimately lacked jurisdiction to “hear” the motion, that is, grant it, upon determining its
essential character. The minute order from the hearing on the first section 473 motion
states that the court conducted a hearing at which the parties were present and offered
argument. As explained above, the trial court properly concluded that the first section
473 motion amounted to nothing more than a motion for reconsideration over which it
lacked jurisdiction during the pendency of Mynandu’s first appeal.
       In a related contention, Mnyandu also suggests that the trial court improperly
denied her October 2013 new trial motion. In dismissing Mnyandu’s appeal from that
ruling because it was nonappealable, we determined that the trial court was compelled to
deny the new trial motion because Mnyandu filed it long after the statutory period for
doing so had passed. Assuming -- without deciding -- that the ruling is now reviewable
(Fn. continued on next page.)
                                             17
not rely on the February 2012 judgment or oppose her in this appeal. For the
reasons discussed below, she is mistaken.
       In resolving Mnyandu’s first appeal, we rejected similar contentions
predicated on the criminal action involving Mnyandu. Noting that the doctrine of
judicial estoppel prohibits a party from abandoning a position upon which it
prevailed in a prior proceeding (Jackson v. County of Los Angeles (1997) 60
Cal.App.4th 171), we determined that Mnyandu had not shown that respondents,
in seeking summary judgment, asserted views contrary to any on which they may
have prevailed in the criminal action. Furthermore, because the doctrine of
collateral estoppel prevents a party from relitigating issues that were “raised,
actually submitted for determination and determined” in another action (Barker v.
Hull (1987) 191 Cal.App.3d 221, 226), we concluded that her contention under
that doctrine failed for want of a showing regarding the nature or outcome of the
criminal action. We further noted that for purposes of collateral estoppel, an
acquittal in an criminal action does not constitute a final determination in a civil
action regarding the pertinent person’s conduct. (In re Sylvia R. (1997) 55
Cal.App.4th 559, 563.) Those conclusions are now beyond challenge as law of the
case.11




as an interim order relating to the denial of the second section 473 motion (§ 906), our
prior determination conclusively resolves Mnyandu’s contention.
11      The doctrine of the law of the case, which governs the effect of an appellate
opinion on a subsequent retrial or appeal, provides that “[t]he decision of an appellate
court, stating a rule of law necessary to the decision of the case, conclusively establishes
that rule and makes it determinative of the rights of the same parties in any subsequent
retrial or appeal in the same case.” (9 Witkin, Cal. Procedure, supra, Appeal, § 459, p.
515.)

                                             18
      Mnyandu’s renewed contentions, insofar as they fall outside the issues
resolved in the first appeal, also are defective. She has shown no grounds for the
application of judicial estoppel, as nothing before us suggests that in the WCAB
proceedings or the criminal action, respondents prevailed on a position contrary to
any they have urged in opposing Mnyandu’s attacks on the February 2012
judgment.12 Similarly, she has not shown a basis for the application of collateral
estoppel, which bars relitigation of an issue decided in a proceeding only when
there is a final judgment in that proceeding (Mueller v. J.C. Penney Co. (1985)
173 Cal.App.3d 713, 718-719), that is, a judgment no longer “open to direct attack
by appeal or otherwise” (National Union Fire Ins. Co. v. Stites Prof. Law Corp.
(1991) 235 Cal.App.3d 1718, 1726). Mnyandu has identified no final judgment
sufficient to support an attack on the February 2012 judgment or to bar
respondents from opposing this appeal. In sum, the trial court properly denied the
second section 473 motion.


                                    DISPOSITION
      The trial court’s order is affirmed. Respondents are awarded their costs on
appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




12    Mnyandu’s reply brief suggests that judicial estoppel is applicable because
respondents successfully challenged a judgment favorable to Mnyandu in the WCAB
proceeding. However, the fact of that challenge is not inconsistent with the views they
have advocated regarding the February 2012 judgment.

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                      MANELLA, J.


We concur:



EPSTEIN, P. J.




WILLHITE, J.




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