Filed 6/22/15 Marriage of Schessler CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re Marriage of TERESA and JOSEPH                                  B254152
SCHESSLER.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. VD063295)

TERESA SCHESSLER,

         Respondent,

         v.

JOSEPH SCHESSLER,

         Appellant.



         APPEAL from an order of the Superior Court of Los Angeles County, Charles Q.
Clay III, Judge. Affirmed.
         Joseph Schessler, in pro. per., for Defendant and Appellant.
         No appearance by Plaintiff and Respondent.
                                       __________________________
       Joseph Schessler appeals from the denial of his motion to set aside the stipulated
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judgment on reserved issues entered in his marital dissolution action. Joseph, who is
currently in prison and was incarcerated, and thus not present, when the hearing on the
stipulated judgment occurred, contends his attorney was not authorized to agree to the
terms of the stipulated judgment. Because substantial evidence supports the trial court’s
finding the motion was untimely, we affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. The Stipulated Judgment of Dissolution
       Teresa and Joseph separated in December 2006 after almost 13 years of marriage;
they had one son, Steven, born in September 2000. In January 2007 Teresa petitioned for
dissolution of the marriage. In April 2007 Joseph was arrested in connection with the
1989 murder of his stepmother. On November 9, 2007 the family law court entered a
judgment dissolving the marriage and retaining jurisdiction over all other matters. (Fam.
                         2
Code, § 2337, subd. (a).) In June 2008 Joseph was convicted of first degree, special
circumstances murder and was sentenced to a state prison term of life without the
possibility of parole.
       On April 1, 2009 Teresa, her attorney, Kathleen Fitzgerald, and Joseph’s attorney,
Diana Delker, signed a stipulated judgment on reserved issues (Judicial Council Forms,
form FL-180 and an attachment, entitled “Attachment 4j to Judgment,” setting forth the
terms). The judgment awarded Teresa sole legal and physical custody of Steven and
gave her sole discretion to determine visitation. It also divided Joseph and Teresa’s
community property, essentially awarding each of them the items in their possession or
held in their name alone. Delker signed the stipulated judgment both as attorney for




1      As is customary in family law matters, we refer to the parties by their first names
for convenience and clarity. (See In re Marriage of Herr (2009) 174 Cal.App.4th 1463,
1466, fn. 1.)
2      Statutory references are to this code unless otherwise indicated.

                                              2
Joseph and on behalf of Joseph. Next to her signature above Joseph’s name on the last
page of Attachment 4j, Delker wrote “power of attorney for.”
        At the outset of the family law hearing on April 1, 2009, Fitzgerald informed the
court, “[W]e have a full stipulation, a stipulated judgment. However, because of
Mr. Schessler’s current situation, his attorney is signing, under power of attorney. And I
would like to voir dire my client on the record and have Ms. Delker explain to the court
the full power to sign on behalf of her client.” Delker subsequently explained, “We have
some monies in trust from the sale of the home, in which I was actually given proper
legal power of attorney for my client, which I still maintain, which we can use for this
case, as well as for signing over the judgment and releasing the rest of those monies.”
        Judgment on reserved issues was entered the same day, with the court retaining
jurisdiction to enter appropriate orders with respect to Joseph’s retirement fund. Notice
of entry of judgment (Judicial Council Forms, form FL-190) was also filed on April 1,
2009.
        2. The Motion To Set Aside the Stipulated Judgment
        On March 26, 2012 Joseph, representing himself, moved to set aside the stipulated
judgment as void, alleging Delker had not been authorized to agree to its terms. Joseph
argued the power of attorney he gave Delker was limited to acts involving his and
Teresa’s home and automatically terminated 90 days after its effective date of April 28,
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2008, several months prior to the date the stipulated judgment was signed. Joseph’s
dissatisfaction with the stipulated judgment included Delker’s failure to secure visitation
rights or any form of contact with Steven. He also insisted some of the property awarded
to Teresa was his separate property.
        In a declaration Joseph explained he had not filed the motion until almost three
years after the judgment was entered because Delker had failed to send him the

3      The power of attorney stated that Joseph appointed Delker “as my true and lawful
attorney-in-fact . . . to act for me any in my name, place and stead to do any of the
following but only with respect to transactions involving the Real Property” defined as
Teresa and Joseph’s home.

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documents. He contended he had received the “Notice of Entry of Judgment,
Attachment 4j” for the first time in April 2011 after his sister obtained a copy from
Delker. In August 2011 Joseph obtained a copy of his criminal attorney’s file, which
included a copy of the power of attorney he had signed. Joseph asserted, “Upon review
of said document, I realized that Delker’s Power of Attorney was limited to the funds
from the proceeds of the sale of my home.” He also contended he had not been given
time to read the document when he signed it and could not communicate with Delker
because she was in another room.
       On June 1, 2011 Joseph filed a complaint against Delker with the State Bar of
           4
California. The State Bar declined to prosecute Delker for possible violation of the State
Bar Act or California Rules of Professional Conduct. In an August 31, 2011 letter, which
Joseph attached as an exhibit to his declaration in support of the motion to set aside the
judgment, an attorney for the State Bar reported that Delker had responded to Joseph’s
complaint and explained that “[s]he was given authority and full written permission to
handle and discuss all matters with your sister Cindy [Liggett]. This was because Cindy
was attempting to gain guardianship over your son, and [Delker] also assisted the family
in the guardianship matter, by helping them obtain counsel. [¶] During the process of the
criminal trial and family law matters, her main contact for you was Cindy. You were
often difficult to have regular contact with as you were transferred numerous times in jail
and transferred to Delano State Prison . . . with limited telephone access. . . . [Delker]
believes the family law courts were unsympathetic to you and during a chambers
conference with her opposing counsel, the court let it be known it had no patience or
sympathy for your personal property issues. The court’s[] main concern was finding
funding for the minor child. The judge made it clear all property judgments would be
decided in favor of the mother to care for the minor child. The judge also made it clear

4      On August 23, 2012 Joseph sued Delker in Orange County Superior Court
alleging causes of action for fraud, breach of contract, breach of fiduciary duty and
professional negligence based on her execution of the stipulated judgment without his
knowledge or consent. The lawsuit is scheduled for trial later this year.

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that he would not grant any visitation orders in favor of you; and gave the mother
complete discretion on whether the minor would have any contact with you in prison. . . .
[¶] All agreements were fully discussed and agreed upon with you directly and/or with
Cindy.”
       For her part, Delker asserted she had written Joseph soon after the stipulated
judgment was entered and thereafter mailed him copies of all documents. Delker later
heard from Cindy that Joseph said he had not received the documents, so Delker provided
them to Cindy. Based upon its evaluation of the information provided in response to
Joseph’s complaint, the State Bar concluded it could not prove Delker violated her ethical
obligations and closed the file.
                                                   5
       On May 24, 2013, after a series of delays, the trial court held an evidentiary
hearing on the motion to set aside the stipulated judgment. However, because Joseph had
not received copies of Teresa’s response to the motion, the court agreed to allow him an
opportunity to reply before ruling. On November 12, 2013, after Joseph had filed a 33-
page reply with more than 80 pages of exhibits, the court denied the motion, finding,
“[Joseph] failed to meet his burden of showing that the court had any legal authority to
consider his claims, that his requests were not barred by the statute of limitations, or of
producing credible, admissible evidence sufficient to support his belated claim that the
judgment is void and should be set aside.”
       3. The Appeal
       Joseph filed a timely notice of appeal. In light of Joseph’s indigent and self-
represented status, to assist with review of the issues on appeal, this court ordered
transcripts prepared of the hearings on April 1, 2009 on the proposed stipulated judgment
and May 24, 2013 on the motion to set aside the judgment. We also obtained the
complete trial court file because the record on appeal is incomplete (for example, it does
not include Teresa’s opposition to the set-aside motion or supporting declarations). (See


5     At the outset of the hearing the trial court acknowledged there had been “various
and sundry oversights by this court and other delays and some procedural delays.”

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generally Hotels Nevada LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336,
348 [it is appellant’s duty to provide adequate record on appeal; failure to do so requires
issue be resolved against appellant].) Although a self-represented litigant is not excused
from complying with the procedural rules governing appropriate appellate practice (see
Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984 [“mere self-representation is not a
ground for exceptionally lenient treatment”]), whenever possible, we do not strictly apply
technical rules of procedure in a manner that deprives litigants of a hearing. (Cf. Alshafie
v. Lallande (2009) 171 Cal.App.4th 421, 432 [“we carefully examine a trial court order
finally resolving a lawsuit without permitting the case to proceed to a trial on the
merits”].)
                                     DISCUSSION
       1. Standard of Review
       We review for abuse of discretion a trial court’s refusal to set aside a judgment
under Family Code section 2122. (In re Marriage of Brewer & Federici (2001)
93 Cal.App.4th 1334, 1346.) “[T]he showing on appeal is wholly insufficient if it
presents a state of facts . . . which . . . merely affords an opportunity for a difference of
opinion. An appellate tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.” (Brown v. Newby (1940) 39 Cal.App.2d
615, 618.) “The trial court’s exercise of discretion must be guided, however, by fixed
legal principles, and must ‘be exercised in conformity with the spirit of the law and in a
manner to subserve and not to impede or defeat the ends of substantial justice.’” (In re
Marriage of Varner (1997) 55 Cal.App.4th 128, 138.) “A trial court abuses its discretion
when it applies the wrong legal standard or its factual findings are not supported by
substantial evidence.” (Edwards Wildman Palmer LLP v. Superior Court (2014)
231 Cal.App.4th 1214, 1224.)




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       2. Substantial Evidence Supports the Trial Court’s Finding the Motion To Set
          Aside the Judgment Was Untimely
          a. Section 2122 specifies the exclusive grounds and time limits for the motion
       Historically judgments in family law cases, like civil cases generally, were subject
to challenge pursuant to Code of Civil Procedure section 473. (See In re Marriage of
Varner, supra, 55 Cal.App.4th at pp. 138-140; In re Marriage of Heggie (2002)
99 Cal.App.4th 28, 32.) In 1992 the Legislature enacted separate provisions specifying
the requirements to set aside a dissolution judgment as part of the Civil Code, which were
reenacted as a chapter entitled “Relief from Judgment” in the new Family Code the
following year. (§§ 2120-2129; Stats.1993, ch. 219, § 108, pp. 1615-1617; see Kuehn v.
Kuehn (2000) 85 Cal.App.4th 824, 830; In re Marriage of Varner, at p. 136.) The current
statutory scheme authorizes an action or motion to set aside a dissolution judgment on
                                     6
specific grounds (§ 2121, subd. (a)), including “actual fraud” (§ 2122, subd. (a)).
       When, as here, relief is sought more than six months after the judgment or
appealable order was entered, “[s]ection 2122 specifies the exclusive grounds and time
limits for an action or motion to set aside a marital dissolution judgment.”
(In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 684; accord, In re Marriage of
Kieturakis (2006) 138 Cal.App.4th 56, 87.) “Actual fraud” within the meaning of section
2122, subdivision (a), occurs when “the defrauded party was kept in ignorance or in some
other manner was fraudulently prevented from fully participating in the proceeding.” A
motion to set aside based on actual fraud must be brought “within one year after the date
on which the complaining party either did discover, or should have discovered, the
fraud.” (§ 2122, subd. (a).)




6        Section 2121, subdivision (a), states, “In proceedings for dissolution of marriage
. . . 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.”

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       b. The one-year limitations period began running no later than August 2010
       Joseph contends the trial court erred in ruling his motion was untimely because he
did not discover the judgment had been based on Delker’s fraudulent use of his power of
attorney until August 28, 2011—seven months before he filed the motion—when he
finally reviewed a copy of the power of attorney and realized, because it was limited in
                                                                                              7
scope and time, it did not authorize Delker to sign the stipulated judgment on his behalf.
The date Joseph claims he finally understood Delker had committed fraud, however, does
not trigger the running of the limitations period. “[T]he statute of limitations
under section 2122 accrues as of the date the plaintiff either discovered or should have
discovered the facts constituting the fraud . . . .” (Rubenstein v. Rubenstein (2000)
81 Cal.App.4th 1131, 1149 (Rubenstein).) Section 2122, subdivision (a)’s delayed
discovery rule is identical in effect to the requirements of the parallel provision in Code




7       In his lawsuit against Delker in Orange County Superior Court, Joseph alleged he
first became aware of Delker’s fraud in April 2011, not late August 2011 as he asserted in
this proceeding. Based on that allegation Delker demurred to the complaint, which was
not filed until August 23, 2012, contending it was barred by Code of Civil Procedure
section 340.6, subdivision (a), which requires most actions against an attorney for a
wrongful act or omission to be filed within one year after the plaintiff discovers, or
through the use of reasonable diligence should have discovered, the facts constituting the
wrongful act or omission. In his opposition to the demurrer Joseph argued the gravamen
of his complaint was Delker’s actual fraud and, as such, it was governed by the three-
years-from-discovery limitations period in Code of Civil Procedure section 338,
subdivision (d)—an express exception to section 340.6’s one year limitations period. He
also asserted, pursuant to Code of Civil Procedure sections 352.1, subdivision (a), and
340.6, subdivision (a)(4), the time for commencement of his action against Delker was
tolled for at least two years because he was under a legal disability (his imprisonment on
criminal charges) that restricted his ability to commence the action when the claims
accrued. Delker’s demurrer was overruled. (See generally Favila v. Katten Muchin
Rosenman, LLP (2010) 188 Cal.App.4th 189, 224 [“‘“[a] demurrer on the ground of the
bar of the statute of limitations will not lie where the action may be, but is not necessarily
barred”’”].)

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                                                                                 8
of Civil Procedure section 338, subdivision (d) (see Rubenstein, at p. 1149), which
charges plaintiffs with “presumptive knowledge of an injury if they have ‘“‘information
of circumstances to put [them] on inquiry’”’ or if they have ‘“‘the opportunity to obtain
knowledge from sources open to [their] investigation.’”’ [Citation.] In other words,
plaintiffs are required to conduct a reasonable investigation after becoming aware of an
injury, and are charged with knowledge of the information that would have been revealed
by such an investigation.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797,
807-808, fn. omitted.) As the Supreme Court explained in Jolly v. Eli Lilly & Co. (1988)
44 Cal.3d 1103, 1111, “A plaintiff need not be aware of the specific ‘facts’ necessary to
establish the claim; that is a process contemplated by pretrial discovery. Once the
plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must
decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear
that the plaintiff must go find the facts; she cannot wait for the facts to find her.” Phrased
somewhat differently, “under the delayed discovery rule, a cause of action accrues and
the statute of limitations begins to run when the plaintiff has reason to suspect an injury
and some wrongful cause, unless the plaintiff pleads and proves that a reasonable
investigation at that time would not have revealed a factual basis for that particular cause
of action.” (Fox, at p. 803; see Doe v. Roman Catholic Bishop of Sacramento (2010)
189 Cal.App.4th 1423, 1433 [“‘“[d]iscovery is different from knowledge, [so] that where
a party defrauded has received information of facts which should put him upon inquiry,
and the inquiry if made would disclose the fraud, he will be charged with a discovery as
of the time the inquiry would have given him knowledge”’”].)
       Although the trial court did not explain the basis for its conclusion Joseph’s
motion was untimely, we presume on appeal all factual findings necessary to support the
judgment and defer to them if they are supported by substantial evidence. (See Gately v.
Cloverdale Unified School Dist. (2007) 156 Cal.App.4th 487, 496; Fladeboe v. American

8       Code of Civil Procedure section 338, subdivision (d), provides, “An action for
relief on the ground of fraud or mistake . . . is not deemed to have accrued until the
discovery, by the aggrieved party, of the facts constituting the fraud or mistake.”

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                                                    9
Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.) Here, substantial evidence supports
the implied finding the limitations period began running no later than August 1, 2010 and
thus Joseph’s motion filed on March 26, 2012 was untimely.
       In an August 1, 2010 letter to Joseph, his sister Cindy wrote, “I did get a reply
back from Diana Delker. She apologized for not getting you the paperwork and said that
she will do so. I offered to meet her somewhere and pick it up if that is easier for her. [¶]
She also said she has about $600 in an account for you. She wanted to know if you
would like her to send money for your account.” Moreover, in one of his declarations
Joseph asserted the last time Teresa had permitted Steven to visit him was in December
2007 and Teresa had refused to let Joseph’s family see Steven since February 2008. It is
a reasonable inference from this evidence that Joseph knew by August 1, 2010 that
judgment had been entered on the reserved issues in the dissolution proceedings (the
paperwork Delker had for Joseph), the judgment did not provide for any visitation with
Steven, and a property division had been effected that was not in accordance with
Joseph’s direction to Delker regarding his separate property. Whether Joseph, who had
signed the power of attorney, did not recall or fully understand it was limited to
disposition of the family home is beside the point: As of August 1, 2010 Joseph had at
least constructive or inquiry notice the matter had been resolved in an unfavorable
manner, in conflict with his instructions to his attorney regarding visitation and his
separate property rights. At that point he had an obligation to conduct a reasonable
investigation, including obtaining the documents from the court directly. He could not
wait for the facts to come to him. Because Joseph did not file his motion within one year
of August 1, 2010, the trial court properly denied it as untimely.




9      Although Teresa did not file a respondent’s brief on appeal, she argued in the trial
court that Joseph was charged with constructive knowledge of the stipulated judgment
long before he claims to have first seen it (that is, in April 2011).

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                                    DISPOSITION
      The order is affirmed. Because respondent Teresa Schessler did not participate in
the appeal, no costs are awarded.




                                                PERLUSS, P. J.


      We concur:



             ZELON, J.



             STROBEL, J.*




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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