Filed 10/6/16 Pavlik v. Thompson CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

PATRICIA PAVLIK,
                                                                                           F071610
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. FL2056)
                   v.

MICHAEL L. THOMPSON,                                                                     OPINION
         Defendant and Appellant.



         APPEAL from an order of the Superior Court of Kern County. Donald P.
Glennon, Jr., Commissioner.
         Michael L. Thompson, in pro. per., for Defendant and Appellant.
         No appearance for Plaintiff and Respondent.
                                                        -ooOoo-
         After wife petitioned for dissolution of the parties’ marriage, she amended her
petition to seek a judgment of the nullity of the marriage. The trial court bifurcated and
tried that issue and determined the parties’ marriage was not valid because husband had
not legally dissolved his marriage to his first wife before purporting to marry wife. Two
years after that determination, husband moved to vacate the order on the ground of
extrinsic fraud. The trial court denied the motion and husband appeals. Because the
evidence husband relied on did not demonstrate extrinsic fraud, and the motion was
untimely as a motion based on intrinsic fraud, we affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       The parties married in 1988.1 At the time, husband was incarcerated, serving a
life sentence for murder. In May 2006, wife filed a petition for dissolution of the
marriage. Subsequently, wife was granted leave to amend the petition to request a
determination of the nullity of the marriage. The issue of nullity was bifurcated and tried
on November 1, 2011.
       In her trial brief, wife contended husband was still married to his first wife at the
time of the parties’ marriage. She asserted husband told her he had obtained a divorce
from his first wife by going to Mexico and filing divorce papers there. Wife contended
such a divorce was invalid and not recognized in California. Wife also contended the
parties’ marriage was invalid because it was induced by husband’s fraud.
       In her posttrial brief, wife reiterated her argument that husband’s divorce from his
first wife was invalid because neither spouse was domiciled in Mexico at the time of the
divorce. Wife also argued she was not estopped from seeking a determination of nullity,
because she had not been aware of the invalidity of the Mexican divorce until husband
was involved in a documentary in 2007; she then began to investigate the validity of her
marriage to husband.
       On February 24, 2012, the trial court entered its order granting wife’s motion for
an adjudication of the nullity of the parties’ marriage. It found the Mexican divorce to be
invalid under California law. The ruling stated there was no evidence to support the
legality of the divorce; husband could not even remember whether he had actually gone
to Mexico and there was no testimony from the attorney who allegedly advised that the

1        Because of the limited record on appeal, we take our facts from husband’s motion to set
aside the order determining the nullity of the parties’ marriage, including the exhibits attached to
it, and from the register of actions.


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divorce was valid. Wife passed away on February 5, 2012, shortly before entry of the
nullification order.
       More than two years after entry of the order, husband filed his motion to set aside
the nullity order, asserting it was obtained through wife’s extrinsic fraud. He asserted
wife was estopped from challenging the validity of husband’s divorce from his first wife,
but she avoided a finding of estoppel by making false representations to the court. He
served the motion on wife’s attorney of record. The trial court denied husband’s motion,
finding it was untimely, it did not raise any new facts, and husband did not properly serve
wife or her estate. Husband appeals from the order denying his motion to vacate the
nullity order.
                                        DISCUSSION
I.     Request for Judicial Notice
       Husband filed a request that we take judicial notice of the record on appeal in a
related action in this court involving husband, Thompson v. Lujan, case No. F071658.
On appeal, the court may take judicial notice of any matter specified in Evidence Code
section 452. (Evid. Code, § 459.) Under that section, the appellate court has discretion
to take judicial notice of specified matters, including records of any court in this state.
(Evid. Code, § 452, subd. (d).) In the motion requesting judicial notice, the party must
state why the matter is relevant to the appeal. (Cal. Rules of Court, rule 8.252(a)(2)(A).)
The reviewing court may deny the request for judicial notice if the matter that is the
subject of the request is not shown to be relevant to the issues on appeal. (See Doe v.
City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4; Ragland v. U.S. Bank National
Assn. (2012) 209 Cal.App.4th 182, 194.) Husband has not demonstrated that the content
of the appellate record in the other case is relevant to the issues raised in this appeal.
Accordingly, we deny husband’s October 23, 2015, request for judicial notice.




                                               3.
II.    Setting Aside Order of Nullity
       In his motion to set aside the order of nullity, husband argued that wife admitted,
in a July 28, 2008, declaration filed in support of her request to amend her petition to
seek a determination of the nullity of the parties’ marriage, that she had learned
husband’s second wife testified at a parole hearing that her marriage to husband had not
been legally dissolved because the second wife was not served with the divorce papers.
This led to wife’s discovery that husband’s first marriage had not been legally dissolved.
Husband’s motion asserted the second wife’s parole hearing testimony occurred in 1995.
He contended that, because wife did not challenge the validity of her marriage to husband
at that time, and continued to hold herself out as married to husband until she filed her
petition for dissolution in 2006, she was estopped from challenging the validity of her
marriage to husband. He asserted wife falsely claimed for the first time in her posttrial
brief that she first learned of the invalidity of the Mexican divorce in 2007; he argued
wife sought to nullify their marriage solely to keep husband from obtaining a one-half
interest in their property. On the basis of this alleged extrinsic fraud, husband sought to
set aside the determination of nullity of the marriage.
       A.      Appealability
       Code of Civil Procedure section 473, subdivision (d),2 authorizes a court to set
aside any void judgment or order. Additionally, independent of that section, the court has
inherent power, on motion seasonably made, to set aside a judgment on the ground it was
entered as a result of extrinsic fraud. (Heathman v. Vant (1959) 172 Cal.App.2d 639, 648
(Heathman).) Denial of a motion to vacate a judgment or order is generally not an
appealable order. (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658,
668.) If the challenged judgment or order was appealable, permitting an appeal from the


2       All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.


                                                4.
denial of a motion to vacate would give the aggrieved party two appeals from the same
decision or an unwarranted extension of time to appeal. (Cope v. Cope (1964) 230
Cal.App.2d 218, 228 (Cope).)
       There is an exception when the motion to vacate is brought pursuant to statute.
“‘While a denial of a motion to set aside a previous judgment is generally not an
appealable order, in cases where the law makes express provision for a motion to vacate
such as under Code of Civil Procedure section 473, an order denying such a motion is
regarded as a special order made after final judgment and is appealable’” under section
904.1, subdivision (a)(2). (Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998)
61 Cal.App.4th 1384, 1394.) Under section 473, subdivision (d), however, “[o]nce six
months have elapsed since the entry of a judgment, ‘a trial court may grant a motion to
set aside that judgment as void only if the judgment is void on its face.’” (Cruz v. Fagor
America, Inc. (2007) 146 Cal.App.4th 488, 496.) Husband’s motion to vacate the nullity
order was not made within six months after the order was entered. Husband does not
contend the order was void on its face. Accordingly, this exception to the rule of
nonappealability does not apply to this appeal.
       There is another exception to the rule of nonappealability when an equitable
motion to vacate is based on new facts, not presented at the trial or hearing that resulted
in entry of the challenged judgment or order. (Cope, supra, 230 Cal.App.2d at pp. 228–
229; Daley v. County of Butte (1964) 227 Cal.App.2d 380, 388–389 (Daley).) In that
situation, “the discretion of the trial court in disposing of the motion to vacate will be
affected or controlled by facts not before it on the original hearing [citation]; and the
action of the appellate court will be based upon a record not available to the plaintiff had
he appealed from the dismissal itself.” (Daley, at p. 389.)
       Husband’s motion to set aside the nullity order was based on a claim of extrinsic
fraud, assertedly based on facts not presented to the trial court at the trial of the nullity
issue. We conclude the denial of the motion to vacate is appealable.

                                               5.
       B.     Standard of Review
       We review the trial court’s denial of a motion to vacate a judgment or order on
equitable grounds for an abuse of discretion. (Rappleyea v. Campbell (1994) 8 Cal.4th
975, 981.) We determine whether the decision exceeded the bounds of reason in light of
the circumstances before the court. (County of San Diego v. Gorham (2010) 186
Cal.App.4th 1215, 1230.) We review the trial court’s factual findings using the
substantial evidence standard and its statutory interpretations de novo. (Ibid.)
       C.     Extrinsic fraud
       In his motion to set aside the nullity order, husband argued extrinsic fraud was the
sole basis for the trial court’s grant of wife’s motion for a determination of nullity and for
the denial of putative spouse status for husband. He contended, in the absence of
extrinsic fraud, wife would have been estopped from challenging the validity of wife’s
marriage to husband. Husband contended wife submitted a declaration, dated July 28,
2008, in which she stated she began investigating the validity of plaintiff’s marriage to
his second wife, and discovered the invalidity of his divorce from his first wife, after the
second wife’s testimony at a parole hearing for plaintiff. Husband asserted that parole
hearing took place in 1995; wife intentionally left out the date, however, because she
realized if she revealed it she would be legally estopped from challenging the validity of
husband’s divorce from his first wife because she had knowledge of circumstances
making her marriage to husband void, but continued to hold herself out as married to
husband until she filed for dissolution in 2006. (See Schotte v. Schotte (1962) 203
Cal.App.2d 28, 30–31 [“A man who, with full knowledge of the circumstances under
which an invalid divorce was obtained by a previously married woman, relies upon that
decree, participates in a marriage ceremony with the purportedly divorced woman and,
thereafter, lives with her as husband and wife, is estopped to deny the validity of the
marriage which they attempted to effect”].)



                                              6.
       Husband contended the trial court found in favor of wife on the nullity issue
because she filed a posttrial brief in which she claimed she did not learn of the invalidity
of husband’s first marriage until 2007, after husband participated in filming a
documentary in which husband was featured. Husband asserted there was no evidence at
trial that the documentary in any way triggered wife’s investigation into husband’s
divorce from his first wife.
       On appeal, husband claims his motion to vacate presented new facts in the form of
evidence wife transferred the parties’ property into a living trust in her name alone, in
violation of restraining orders imposed by the court in the dissolution proceeding, while
representing to husband and the parole board that the parties had reconciled and that he
owned one-half of the community assets. He asserts he claimed from the outset that
wife’s motive in alleging bigamy was to prevent husband from sharing in the property the
parties had accumulated in the course of their marriage. If he had been able to couple
wife’s actions of hiding or transferring property with the contention that those actions
reflected knowledge she was estopped from challenging the Mexican divorce from his
first wife, the trial court might have found extrinsic fraud supporting husband’s claims of
equitable estoppel and ruled against nullity.
       The trial court denied husband’s motion, finding it was untimely and did not raise
any new facts. Due to the inadequacy of the record, we are unable to review the finding
that the motion did not present any new facts in its attempt to show extrinsic fraud. The
record on appeal does not include any reporter’s transcript or other record of the oral
proceedings at the trial of the nullity issue. We cannot determine what evidence was
presented as to wife’s knowledge or discovery of the invalidity of husband’s divorce
from his first wife.
       Regarding the timeliness of husband’s motion, when a party seeks relief from a
judgment or order on the ground of intrinsic fraud, the motion must be brought pursuant
to section 473, within the six-month time period specified there. (Beresh v. Sovereign

                                                7.
Life Ins. Co. (1979) 92 Cal.App.3d 547, 552 (Beresh); Wyoming Pacific Oil Co. v.
Preston (1959) 171 Cal.App.2d 735, 743 (Wyoming).) When the ground asserted is
extrinsic fraud, equitable relief may be had beyond the time period specified in section
473. (Beresh, at p. 552.) Husband’s motion to vacate was not made within six months
after entry of the challenged nullity order. Thus, it was untimely if it demonstrated only
intrinsic fraud.
       “‘Extrinsic fraud occurs when a party is deprived of the opportunity to present his
claim or defense to the court; where he was kept ignorant or, other than from his own
negligence, fraudulently prevented from fully participating in the proceeding. [Citation.]
Examples of extrinsic fraud are: … failure to give notice of the action to the other party,
and convincing the other party not to obtain counsel because the matter will not proceed
(and then it does proceed). [Citation.] The essence of extrinsic fraud is one party’s
preventing the other from having his day in court.’” (Department of Industrial Relations
v. Davis Moreno Construction, Inc. (2011) 193 Cal.App.4th 560, 570.)
       “‘Any fraud is intrinsic if a party has been given notice of the action and has not
been prevented from participating therein, that is, if he or she had the opportunity to
present his or her case and to protect himself or herself from any mistake or fraud of his
or her adversary, but unreasonably neglected to do so.’” (Home Ins. Co. v. Zurich Ins.
Co. (2002) 96 Cal.App.4th 17, 27 (Home Ins. Co.).) “It is settled in this state that a
judgment will not be set aside because it is based upon perjured testimony or because
material evidence is concealed or suppressed, that such fraud both as to the court and the
party against whom judgment is rendered is not fraud extrinsic to the record for which
relief may be had.” (Heathman, supra, 172 Cal.App.2d at pp. 648–649.)
       Husband’s motion to vacate did not present any evidence of extrinsic fraud that
prevented him from obtaining a fair hearing of the issue of nullity of the marriage. He
does not contend he was denied notice of the trial of the issue or was prevented from
presenting evidence supporting his position. In fact, the record indicates the trial date

                                             8.
was continued multiple times to allow husband to be present, and was eventually held at
the prison. Husband admits both he and wife testified at the trial. The record indicates
both parties were represented by counsel.
       Husband contends the extrinsic fraud was in wife’s assertion in her posttrial brief
of facts contradicting her statements in her July 28, 2008, declaration. He asserts the
2008 declaration was filed in support of wife’s motion to bifurcate the issue of nullity.
Husband points to no evidence in the record that he and his attorney were unaware at the
time of trial of the statements made in wife’s 2008 declaration. He has not shown he was
prevented from presenting evidence of that declaration and the statements it made, or
questioning wife about its content at trial.
       In any event, the alleged fraud was intrinsic. Extrinsic fraud sufficient to justify
setting aside a judgment or order is “‘fraud extrinsic or collateral to the questions
examined and determined in the action.’” (Beresh, supra, 92 Cal.App.3d at p. 553.)
“‘When a claim of fraud goes to an issue involving the merits of the prior proceeding
which the moving party should have guarded against at that time, or if the moving party
… failed to take advantage of liberal discovery policies to fully investigate his or her
claim, any fraud is intrinsic fraud.’” (Home Ins. Co., supra, 96 Cal.App.4th at p. 27.)
The question of the validity of the parties’ marriage was the subject of the trial. The
invalidity of husband’s prior divorce (or divorces) was central to that determination. Any
claim of estoppel to deny the validity of the parties’ marriage also addressed the merits of
the issue before the trial court. Evidence pertaining to the validity of the parties’
marriage or the invalidity of husband’s prior divorces was at the heart of and intrinsic to
the trial proceedings.
       At trial, a party must be prepared to present all evidence relevant to the issues that
the party wishes the trial court to consider. Pretrial discovery is the time to obtain
unknown or concealed evidence. At trial, the party “‘must be prepared to meet and
expose perjury then and there. He knows that a false claim or defense can be supported

                                               9.
in no other way; that the very object of the trial is, if possible, to ascertain the truth from
the conflict of the evidence, and that, necessarily, the truth or falsity of the testimony
must be determined in deciding the issue. The trial is his opportunity for making the
truth appear.’” (Beresh, supra, 92 Cal.App.3d at pp. 553–554.) Presentation of perjured
testimony or false documents at trial is not extrinsic fraud; likewise, concealment or
suppression of evidence that prevents its presentation at trial is not extrinsic fraud.
(Home Ins. Co., supra, 96 Cal.App.4th at p. 27; Wyoming, supra, 171 Cal.App.2d at
p. 743.)
       Thus, the evidence offered by husband was, at best, evidence of intrinsic fraud. A
judgment or order may be set aside based on intrinsic fraud only if the motion to do so is
brought within six months after entry of the order. (Beresh, supra, 92 Cal.App.3d at
p. 552.) Husband’s motion was filed more than two years after entry of the order of
nullity. Accordingly, the trial court did not err in finding husband’s motion was
untimely.
                                        DISPOSITION
       The March 30, 2015, order denying husband’s motion to set aside the nullity order
is affirmed.
                                                                    _____________________
                                                                                 HILL, P.J.
WE CONCUR:


 _____________________
FRANSON, J.


 _____________________
MCCABE, J.


       Judge of the Merced Superior Court, assigned by the Chief Justice pursuant to Article VI,
section 6 of the California Constitution.


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