Filed 6/27/13 Jordan v. O’Connor Hospital CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


JAMES JORDAN,                                                        H038107
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. CV208945)

         v.

O'CONNOR HOSPITAL,

         Defendant and Respondent.



                                              I. INTRODUCTION
         Appellant James Jordan, a self-represented litigant, filed an action against
respondent O’Connor Hospital. He claimed that the hospital had committed an
intentional tort by releasing his medical records pursuant to a subpoena issued in his
federal lawsuit while his motion to quash the subpoena was pending. The trial court
sustained O’Connor Hospital’s demurrer without leave to amend and granted the
hospital’s motion to strike the punitive damages allegations. Although Jordan had not
opposed either the demurrer or the motion to strike, he challenged the trial court’s order
by filing a motion for reconsideration and a “motion for fraud on the court.” The trial
court denied both motions and entered judgment in favor of O’Connor Hospital.
         On appeal, Jordan seeks review of the order denying his “motion for fraud on the
court,” which we understand to be a motion to vacate the judgment on the grounds of
fraud. For reasons that we will explain, we conclude that the trial court did not abuse its
discretion in denying the motion and we will affirm the judgment.
                II. FACTUAL AND PROCEDURAL BACKGROUND
       In 2011, Jordan filed a complaint against defendant O’Connor Hospital alleging
that the hospital had unlawfully released his medical records on August 13, 2010,
pursuant to a subpoena issued in his federal lawsuit, Jordan v. Chapnick (E.D.Cal.
Jul. 16, 2010, 107CV00202OWW-MJS) 2010 U.S. Dist. Lexis 84634. Jordan further
alleged that that the hospital should have known that he had previously filed a motion to
quash the subpoena on July 31, 2010. He claimed that O’Connor Hospital was liable for
committing intentional torts, including invasion of privacy and infliction of emotional
distress, and sought general and punitive damages.
       O’Connor Hospital filed a demurrer to the complaint, which was not included in
the record on appeal, and a motion to strike the punitive damages allegations. The
hospital’s memorandum of points and authorities in support of the demurrer indicates that
the ground for the demurrer was failure to state facts sufficient to state a cause of action.
(Code Civ. Proc., § 430.10, subd. (e).)1 According to O’Connor Hospital, the facts
alleged in the complaint were insufficient for any intentional tort cause of action because,
as shown in the proof of service attached as an exhibit to the complaint, the hospital was
never served with Jordan’s motion to quash. The hospital therefore asserted that it had no
knowledge that Jordan objected to the release of his medical records when it complied
with a valid subpoena. The hospital also requested judicial notice of federal court’s
“August 4, 2010” order denying the motion to quash.”2

       1
         All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
       2
         On our own motion, we take judicial notice of the federal court’s order denying
Jordan’s motion to quash subpoenas for medical records in Jordan v. Chapnick, supra,
2010 Lexis 84634, which indicates that order was filed on August 25, 2010. (Evid. Code,
§ 452, subd. (d)(2).)

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         Jordan did not file opposition to either the demurrer or the motion to strike. The
trial court’s January 24, 2012 minute orders indicate that the court adopted its tentative
rulings sustaining the demurrer without leave to amend and granting the motion to strike.
         Jordan filed a motion for reconsideration dated February 10, 2012, in which he
stated that he wished to challenge the demurrer and motion to strike, but he had been
unable to prepare opposition or acknowledge the tentative rulings because he was
preparing for the jury trial of his federal lawsuit. O’Connor Hospital filed opposition to
the motion for reconsideration, arguing that Jordan had failed to satisfy the requirement
of section 1008 that a motion for reconsideration be based on new or different facts,
circumstances or law. The hospital also maintained that the facsimile cover sheet
submitted by Jordan in support of his motion for reconsideration, which was addressed to
“ ‘Bobby at Records,’ ” did not confirm that the hospital had received the motion to
quash.
         On February 14, 2012, Jordan filed a “motion for fraud on the court,” in which he
claimed that counsel for O’Connor Hospital had concealed the fact that Jordan faxed his
motion to quash the subpoena to “Bobby,” the custodian of records at the O’Connor
Family Health Care Center, on July 30, 2010. Jordan therefore claimed that O’Connor
Hospital was aware that he objected to the release of his medical records at the time the
hospital complied with the subpoena. On that ground, he requested judgment in his
favor. In opposition, O’Connor Hospital argued that “plaintiff’s nonsensical motion . . .
does not comply with any statutory concept of a ‘motion’ required by statute and case
law.”
         While Jordan’s motion for reconsideration and “motion for fraud on the court”
were pending, the trial court issued its February 16, 2012 order stating that Jordan had
not contested the January 23, 2012 tentative rulings sustaining the demurrer without leave
to amend and granting the motion to strike, which became the order of the court pursuant



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to California Rules of Court, rule 3.1308(a)(1). Also on February 16, 2012, the trial court
entered judgment in favor of O’Connor Hospital.
          The trial court then denied Jordan’s motion for reconsideration and “motion for
fraud on the court” in its March 13, 2012 order. Regarding the motion for
reconsideration, the court found that Jordan had failed to identify any new facts or law as
required by section 1008. The court also found that “at a minimum, Plaintiff was aware
of his litigation workload well before the hearing on Defendant’s demurrer and motion,
yet did not file any opposing papers or seek a continuance. Plaintiff simply cannot meet
the ‘strict requirement of diligence.’ ” The order further states: “Plaintiff’s ‘motion for
fraud on the Court,’ in effect a motion asserting concealment of facts by Defendant in its
demurrer and motion papers, is DENIED.”
          On March 22, 2012, Jordan filed a notice of appeal from the “March 22, 2011”
judgment or order.
                                      III. DISCUSSION
          A. Scope of Appeal
          At the outset, we consider the scope of Jordan’s appeal. O’Connor Hospital
argues that since the notice of appeal did not indicate that Jordan was appealing from a
judgment of dismissal after an order sustaining a demurrer without leave to amend, the
appeal must be limited to review of the order denying the motion for reconsideration3 and
the order denying the “motion for fraud on the court.” In his reply brief, Jordan clarifies
that his appeal is “entirely based” on the order denying his “motion for fraud on the
court.”
          The California Supreme Court has instructed that a notice of appeal “ ‘ “shall be
liberally construed in favor of its sufficiency.” ’ ” (Walker v. Los Angeles County


          3
        We note that section 1008, subdivision (g) provides in part: “An order denying a
motion for reconsideration made pursuant to subdivision (a) is not separately appealable.”

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Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 20.) An order denying a
motion to vacate the judgment on the ground of fraud is an appealable order. (Thomson
v. Continental Ins. Co. (1967) 66 Cal.2d 738, 748.) Moreover, since both Jordan and
O’Connor Hospital have argued the merits of the March 13, 2012 order denying the
“motion for fraud on the court,” they would not be misled or prejudiced by this court
construing the notice of appeal to apply to that order only. (See Gu v. BMW of North
America, LLC (2005) 132 Cal.App.4th 195, 202-203.)
       We will therefore limit our review to the order denying the “motion for fraud on
the court.”
       B. “Motion for Fraud on the Court”
       Jordan argues that the trial court erred in denying his “motion for fraud on the
court” and asserts that the court has “inherent equitable power” to vacate a judgment that
has been obtained through fraud on the court. O’Connor Hospital, on the other hand,
argues that the “motion for fraud on the court” is essentially a motion for reconsideration
that lacks merit since the motion did not satisfy the requirements of section 1008, the
statute governing motions for reconsideration of an order.
       We do not agree that Jordan’s “motion for fraud on the court” may be treated as a
motion for reconsideration under section 1008. Having reviewed the motion, we
understand Jordan to have moved to vacate the judgment on the ground of fraud,
consisting of the conduct of O’Connor Hospital’s attorneys in allegedly concealing from
the trial court the hospital’s knowledge that Jordan objected to the subpoena of his
medical records. We will therefore consider the merits of Jordan’s contention that the
trial court erred in denying his “motion for fraud on the court” under the rules governing
a motion to vacate the judgment on the ground of fraud.
              1. Motion to Vacate the Judgment on the Ground of Fraud
       A motion to vacate the judgment on the ground of fraud is generally authorized.
The California Supreme Court has instructed that “[u]nder certain circumstances a court,

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sitting in equity, can set aside or modify a valid final judgment. [Citations.]” (Kulchar v.
Kulchar (1969) 1 Cal.3d 467, 470 (Kulchar).) “A final judgment may be set aside by a
court if it has been established that extrinsic factors have prevented one party to the
litigation from presenting his or her case. [Citation.] The grounds for such equitable
relief are commonly stated as being extrinsic fraud or mistake. However, those terms are
given a broad meaning and tend to encompass almost any set of extrinsic circumstances
which deprive a party of a fair adversary hearing.” (In re Marriage of Park (1980) 27
Cal.3d 337, 342 (Park).) Thus, where the husband in a marital dissolution action
concealed from the trial court that his wife could not attend the dissolution proceeding
because she had been involuntarily deported, the husband “perpetrated a fraud upon the
court as well as his wife.” (Id. at p. 343.) The trial court therefore abused its discretion
when it denied the wife’s motion to vacate the judgment. (Id. at p. 347.)
       In ruling upon motions to set aside the judgment on the ground of fraud, courts
distinguish extrinsic fraud from intrinsic fraud. “ ‘Fraud is extrinsic where the defrauded
party was deprived of the opportunity to present his or her claim or defense to the court,
that is, where he or she was kept in ignorance or in some other manner, other than from
his or her own conduct, fraudulently prevented from fully participating in the
proceeding.’ [Citation.] ‘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, 26-27 (Home Ins. Co.).)
       Thus,“ ‘[w]hen 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 was guilty of negligence in failing to prevent the fraud or mistake or in
contributing thereto, . . . any fraud is intrinsic fraud.’ [Citation.] Generally, . . . the
concealment or suppression of material evidence is deemed intrinsic fraud. [Citation.]”

                                                6
(Home Ins. Co., supra, 96 Cal.App.4th at p. 27.) Intrinsic fraud is not a valid ground for
setting aside a judgment. (In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051,
1069-1070 (Stevenot).)
       The California Supreme Court has instructed that “[w]hether the case involves
intrinsic or extrinsic fraud or mistake is not determined abstractly. ‘It is necessary to
examine the facts in the light of the policy that a party who failed to assemble all his [or
her] evidence at the trial should not be privileged to relitigate a case, as well as the policy
permitting a party to seek relief from a judgment entered in a proceeding in which he [or
she] was deprived of a fair opportunity fully to present his case.’ [Citation.]” (Kulchar,
supra, 1 Cal.3d at p. 473.) For example, where the defendant moved to vacate a default
judgment on the ground that plaintiff’s counsel had obtained the default by concealing
facts from the court, the motion was properly denied because “[p]laintiff did nothing to
prevent defendant from having its day in court” and the defendant failed to “demonstrate
a satisfactory excuse for not defending the action. [Citations.]” (Sporn v. Home Depot
USA, Inc., (2005) 126 Cal.App.4th 1294, 1300-1301 (Sporn).)
              2. Analysis
       The standard of review for an order denying a motion to vacate the judgment on
the ground of fraud is abuse of discretion. (Park, supra, 27 Cal.3d at p. 347.) As we will
explain, we determine in the present case that the trial court did not abuse its discretion
because the fraud claimed by Jordan in his “motion for fraud on the court” constitutes
intrinsic fraud, which is not a valid ground for setting aside a judgment. (See Stevenot,
supra, 154 Cal.App.3d at pp. 1069-1070.)
       As we understand it, Jordan contended in his “motion for fraud on the court” that
counsel for O’Connor Hospital committed fraud by concealing from the trial court the
fact that the hospital had actual knowledge that he objected to the release of his medical
records pursuant to the subpoena issued in his federal case. To support this argument,
Jordan asserted that he had faxed his motion to quash the medical records subpoena to

                                               7
“Bobby,” the custodian of records at the O’Connor Family Health Care Center, on
July 30, 2010, well before the hospital complied with the subpoena and released his
medical records on August 13, 2010. Jordan also asserted that he did not oppose
O’Connor Hospital’s demurrer to his complaint or its motion to strike the punitive
damages allegations because he was involved in preparing for the jury trial of his federal
lawsuit.
          Jordan’s argument makes clear that the basis of his motion is not extrinsic fraud,
since he has not shown that he was deprived of a fair opportunity to oppose O’Connor
Hospital’s demurrer or motion to strike due to the hospital’s fraud. (See Kulchar, supra,
1 Cal.3d at p. 473.) Jordan apparently possessed the evidence—the fax cover sheet—that
allegedly indicated he had faxed his motion to quash the subpoena to “Bobby,” an
O’Connor Hospital custodian of records, prior to the hospital releasing his medical
records. However, he failed to present this evidence, which arguably showed that
O’Connor Hospital had knowledge that he objected to the subpoena before the records
were released, because he failed to timely oppose the hospital’s demurrer and motion to
strike.
          Although Jordan explained that his failure was due to his involvement in preparing
for the jury trial of his federal lawsuit, “ ‘press of business’ alone ” does not constitute
grounds for relief. (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423, 1425 (Huh)
[attorney failed to show excusable neglect warranting discretionary relief under section
473].) “To constitute grounds for relief, an exceptional workload generally must be
accompanied by some factor outside the attorney’s control that makes the situation
unmanageable, such as a mistake ‘caused by a glitch in office machinery or an error by
clerical staff.’ [Citations.]” (Huh, supra, at p. 1424.) This rule applies to Jordan, even
though he is self-represented. “Under the law, a party may choose to act as his or her
own attorney. [Citations.] ‘[S]uch a party is to be treated like any other party and is
entitled to the same, but no greater consideration than other litigants and attorneys.

                                                8
[Citation.]’ [Citation.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
Thus, a self-represented litigant is not entitled to lenient treatment. (Rappleyea v.
Campbell (1994) 8 Cal.4th 975, 984-985.)
       We therefore determine that Jordan’s claim of fraud constitutes a claim of intrinsic
fraud, since (1) he had the opportunity to present his evidence in opposition to O’Connor
Hospital’s demurrer and motion to strike and to protect himself from the hospital’s
alleged fraud, but he unreasonably neglected to do so (Home Ins. Co., supra, 96
Cal.App.4th at p. 27); and (2) O’Connor Hospital did nothing to prevent Jordan from
timely opposing the demurrer or the motion to strike (Sporn, supra, 126 Cal.App.4th at
p. 1300). Since intrinsic fraud is not a sufficient ground for a motion to vacate the
judgment on the ground of fraud (Stevenot, supra, 154 Cal.App.3d at pp. 1069-1070), we
conclude that the trial court did not abuse its discretion in denying Jordan’s “motion for
fraud on the court” and we will affirm the judgment.




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                               IV. DISPOSITION
      The judgment is affirmed. Costs on appeal are awarded to respondent O’Connor
Hospital.




                                ___________________________________________
                                BAMATTRE-MANOUKIAN, J.




WE CONCUR:




________________________________
ELIA, ACTING P.J.




________________________________
MÁRQUEZ, J.




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