Filed 8/12/20
                              CERTIFIED FOR PUBLICATION

                 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SIXTH APPELLATE DISTRICT

 In re Marriage of MANISHKUMAR and                    H045092, H045203, H046567
 PRIYANKA ANKOLA.                                    (Santa Clara County
                                                      Super. Ct. No. 115-FL173072)

 MANISHKUMAR ANKOLA,

            Appellant,

            v.

 PRIYANKA ANKOLA,

            Respondent.


        Petitioner Manishkumar Ankola (Manish)1 and respondent Priyanka Ankola
(Priyanka) met in August 2013, were married in June 2014, but ultimately the marriage
was dissolved in September 2018. In these three appeals, Manish challenges certain
orders entered by the trial court during the dissolution proceedings, as follows:
        1.         In H045092, Manish appeals from the trial court’s August 15, 2017 order
granting respondent Priyanka’s request for a domestic violence restraining order (DVRO)
pursuant to Family Code section 6344,2 arguing that the order is not supported by
substantial evidence. As discussed below, we conclude that the DVRO was supported by
substantial evidence and will therefore affirm the order.




        1 In his briefing, Mr. Ankola refers to himself by the abbreviated version of his
first name, so we will do the same.
        2 Unspecified statutory references are to the Family Code.
       2.      In H045203, Manish appeals from an October 5, 2017 order rescinding a
prior award of attorney fees, entered on March 8, 2017, in his favor,3 arguing that the trial
court lacked jurisdiction to reconsider the March 8, 2017 order or, alternatively, that the
October 5, 2017 order rescinding it constituted an “unauthorized sanction” against him.
We agree that the trial court erred in rescinding the prior order, but for reasons different
than those advanced by Manish. Accordingly, we will reverse the October 5, 2017 order
rescinding the prior award of attorney fees to Manish.
       3.      In H046567, Manish appeals from the judgment of dissolution, filed on
November 29, 2018, arguing the trial court employed the incorrect standard of proof
when it denied his petition for nullity by order dated October 31, 2016.4 As we explain,
the trial court utilized the appropriate standard of proof in that hearing and we will
therefore affirm the order denying Manish’s petition for nullity as well as the judgment of
dissolution.
I.     FACTUAL AND PROCEDURAL BACKGROUND
       In an effort to impose clarity on an otherwise confusing record of what has
transpired below, we first briefly describe the procedural history leading up to each of the
three appeals addressed herein. Detailed recitations of the evidence presented in the
relevant hearings are provided in conjunction with the discussion of the issues raised in
those individual appeals.
       On December 15, 2015, Manish filed a petition for nullity of his marriage to
Priyanka, based on fraud. Priyanka’s response denied the allegations of Manish’s

       3 The notice of appeal in H045203 indicates that Manish is appealing an order
denying his motion to hold Priyanka in contempt and an order denying Manish’s
application to sell property. However, Manish does not raise any arguments in his briefs
relating to these orders and we consider the issues waived. “Courts will ordinarily treat
the appellant’s failure to raise an issue in his or her opening brief as a waiver of that
challenge.” (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685 (Paulus).)
       4 Manish does not otherwise challenge the judgment of dissolution in his briefing

and we consider the issue waived. (Paulus, supra, 139 Cal.App.4th at p. 685.)
                                              2
petition, and requested dissolution of the marriage due to irreconcilable differences. The
parties engaged in a series of acrimonious court proceedings over the next several years,
leading to multiple appeals, three of which are addressed herein.
       A.     Procedural history relating to H045092 and H045203
       On July 14, 2016, Priyanka filed a request for a domestic violence restraining
order (DVRO) against Manish. Priyanka’s request for a DVRO proceeded to a bifurcated
trial on September 7, 2016, along with Manish’s petition for nullification. The trial court
denied Manish’s petition for nullification and Priyanka’s request for a DVRO, finding
that the parties had failed to meet their respective burdens of proof.5 The court reserved
Manish’s request for attorney fees in connection with Priyanka’s unsuccessful application
for a DVRO. Following a hearing, the court issued an order on March 8, 2017, awarding
Manish $10,000 in attorney fees as “the prevailing party in the DVRO action.” The order
provided that the fees were “[d]ue in full, on or before []: April 13, 2017.”
       In February 2017, Priyanka filed a new request for a DVRO against Manish based
on facts which had arisen since the September 2016 hearing. After a hearing, the trial
court granted Priyanka’s request and, on August 15, 2017, issued a DVRO against
Manish with a five-year duration (the 2017 DVRO). On August 31, 2017, Manish
appealed (H045092) from the 2017 DVRO. Manish also purported to appeal from “[a]ny
attorney’s fees award against [Manish] related to” the 2017 DVRO, but at the time he
filed the notice of appeal in H045092, Priyanka’s request for an award of attorney fees
was still pending.


       5  On December 13, 2016, Manish filed a notice of appeal from the order denying
his petition to nullify the marriage (H045335), but because that notice was lost or
misplaced by the superior court, it was not lodged in this court until December 14, 2017.
In April 2018, we issued an order to show cause why the appeal should not be dismissed
as taken from a nonappealable order and dismissed the appeal for that reason by written
order dated June 1, 2018. Manish’s petition for review of that dismissal was denied by
the California Supreme Court on August 8, 2018.
                                              3
       Priyanka’s request for attorney fees was heard on September 11, 2017, and in an
order dated October 5, 2017, the trial court: (1) awarded $10,562.50 in attorney fees to
Priyanka; and (2) rescinded its March 8, 2017 order awarding $10,000 in attorney fees to
Manish. On October 12, 2017, Manish appealed (H045203) from the October 5, 2017
order in its entirety as well as an “[o]rder entered September 21, 2017, denying sale of
my separate property home.”6 On December 11, 2017, we ordered that the appeals in
H045092 and H045203 be considered together for purposes of briefing, oral argument
and disposition.
       B.       Procedural history relating to H046567
       As discussed above, the trial court denied Manish’s petition for nullity following a
contested hearing on September 7, 2016, and we dismissed Manish’s appeal from that
nonappealable order in June 2018. On September 27, 2018, the trial court proceeded to
hear Priyanka’s petition for dissolution. After bifurcating the issue of marital status, the
trial court found “good cause to grant dissolution of the status of the marriage only.” On
December 3, 2018, Manish filed a notice of appeal (H046567) from the judgment of
dissolution entered on November 29, 2018,7 specifically challenging the September 2016
order denying his petition to nullify the marriage. On May 21, 2020, we ordered that the
appeal in H046567 be considered with the appeals in H045092 and H045203 for
purposes of oral argument and disposition.
II.    DISCUSSION
       A.       Order to show cause
       Before turning to the merits of the three appeals, we must address the June 1, 2018
order in which we directed Manish to show cause why his appeal in H045092 from “any
attorney’s fees award” should not be dismissed as premature. Manish filed a response to
our order to show cause on June 15, 2018, along with a request for leave to file an

       6   See footnote 3, ante.
       7   The judgment specifies that the date of dissolution is September 27, 2018.
                                              4
amended notice of appeal in H045092. We denied the request to file an amended notice
of appeal by written order and indicated that the order to show cause “shall be considered
with the merits of the appeals in Case Nos. H045092 and H045203.”
       Although Manish’s notice of appeal from the award of attorney fees in H045092
was premature, we have discretion to treat it “as filed immediately after entry of” the
order, which would be timely. (Cal. Rules of Court, rule 8.104(d)(2).) In exercising our
discretion, we liberally construe a premature notice of appeal in favor of its sufficiency.
(Marcotte v. Municipal Court (1976) 64 Cal.App.3d 235, 239.) It is reasonably clear
from the notice of appeal that Manish intended to challenge the trial court’s impending
decision to award attorney fees to Priyanka, and it does not appear that she was misled or
prejudiced by Manish’s reference to “[a]ny attorney’s fees award against [Manish]
related to” the 2017 DVRO instead of the written order entered on October 5, 2017. We
will therefore treat the premature notice of appeal of attorney fees in H045092 as being
filed immediately after the written order that was entered on October 5, 2017. (Cal.
Rules of Court, rule 8.104(d)(2).)
       B.     H045092—2017 order granting Priyanka’s DVRO petition
              1.     Petition and hearing
       In her February 22, 2017 request for a DVRO, Priyanka alleged that, despite her
many requests, Manish continued to make unwanted contact with her, in e-mails and by
calling her phone repeatedly from September 2016 through February 2017. Priyanka
further alleged that “[Manish] is obsessed with me and if he can’t have me back he
threatens to deport me, he embarrasses me by disclosing personal information including
sexual intimate information to my family and friends.” Priyanka alleged that on
December 30, 2016, Manish was “stalking me at my apartment building” and she
discovered that he “had secretly moved into the apartment adjacent” to hers.




                                              5
       Evidence was presented on Priyanka’s request for a DVRO at separate hearings on
April 26, 2017 and June 19, 2017.8
                     a.     Priyanka’s evidence
       City of Mountain View Police Officer Ricky Valenzuela testified that he was
dispatched to an apartment complex around 11:00 a.m. on December 30, 2016, in
response to a report of a domestic disturbance. Upon his arrival, he spoke to Priyanka,
the reporting party, who told him that her husband had just moved next door to her.
Priyanka told Valenzuela “about her past” history with Manish. However, Priyanka said
that Manish did not threaten or touch her that day.
       Valenzuela then went to speak to Manish in his apartment. Manish told him that
he had moved to that apartment “a few days earlier” and had signed a one-month lease.
Manish said he knew that Priyanka was “living next door” and that he moved to this
place because he wanted his son to attend a local public high school. With Manish’s
consent, Valenzuela looked around and observed that the only items in the one-bedroom
apartment were a lawn chair, and some blankets and pillows in the living room. The
bedroom itself was empty.
       While Valenzuela was still at the apartment complex conducting his investigation,
Priyanka showed him an e-mail that Manish had just sent her, which showed a time
stamp of 12:06 p.m. In that e-mail, Manish wrote he could not find an apartment in
Cupertino at a “reasonable price,” the “only [apartment] I found here” was the apartment
“opposite you,” but “[i]t has nothing to do with you.” Valenzuela contacted the judge
responsible for issuing emergency protective restraining orders, but the judge did not
issue a restraining order. Valenzuela’s report on the incident, which included the e-mail
Manish sent to Priyanka that day, was admitted into evidence.

       8 A third hearing was held on May 19, 2017, to discuss the terms of a possible
settlement, but no agreement could be reached. No evidence was presented at this
hearing.
                                             6
       Priyanka testified that she received an e-mail from Manish on December 29, 2016,
in which he informed her that he was going to move to Cupertino. The next day, she was
taking her trash to the dumpster in the garage at her apartment complex when she saw
Manish standing near a car. Manish tried to hide, but once he realized she had seen him,
he came toward her.
       Priyanka ran to her apartment, with Manish following. She pulled out her phone
and began taking a video of him, telling him to go away. Manish told her he lived in the
complex, in the apartment directly across from hers. Priyanka said she was going to call
the police, and Manish asked her not to do so, saying he wanted to talk to her. He told
her that he had moved in so that his son could attend a public school in the area.
       Priyanka called the police and met with Valenzuela when he responded. Priyanka
moved out of her apartment that evening, though she admitted she had already planned to
move out before she discovered that Manish had rented an apartment there.
       Priyanka confirmed that she had previously asked Manish, either personally or
through counsel, not to contact her. Priyanka authenticated and introduced into evidence
three e-mails, dated May 18, 2016, September 23, 2016, and November 28, 2016,
reflecting those requests. Despite this, Manish continued to contact her, sending her
e-mails.
       On December 8, 2016, Manish sent Priyanka an e-mail informing her that he “had
sent a complaint to the immigration officials.”
                      b.    Manish’s evidence
       Manish testified that he was currently unemployed and was laid off in March
2017. He complained that this was “the third restraining order [request] [Priyanka] has
filed against me based on frivolous accusations” and, in his mind, “all of this is in order
to support her green card petition.”
       Manish traveled to India twice in October and November of 2016, staying between
40 and 50 days, because his father was gravely ill and then died. During the first week he
                                              7
was in India, he kept Priyanka “informed by e-mail” about his father’s health because
“my dad was very close to everybody in her family.” Manish admitted he was trying to
“reconnect . . . with her” because his father “wanted us to be happy together.”
       When Manish returned to the United States on December 4, 2016, he discovered
that he would be laid off. Because he was losing his job, Manish would probably not be
able to afford to send his son to a private high school in the fall, so he needed to move to
an address within the district boundaries of a highly-rated public high school.
       Manish admitted that he rented an apartment right across from the one in which
Priyanka lived, but said he did not know she still lived there. He knew she had lived
there previously. Manish knew that this apartment complex in Mountain View was
within the boundaries for one of the two public schools his son wished to attend. The
other school was in Cupertino, but Manish could not find an apartment in that city “at a
reasonable cost,” although he did submit rental applications to “three or four apartment
complex[es].” However, the complex in Mountain View had month-to-month rentals,
which he found desirable.
       The court asked Manish if “[Priyanka]’s former residence at that complex played
zero role in your selection” and Manish answered “yes and no.” He did not expect
Priyanka to be there, and if he “was stalking her” he would have rented the apartment two
months prior. Because Manish knew the apartment was within the school boundaries and
allowed month-to-month tenancies, he made no effort to look for other rentals in
Mountain View.
       Manish said that, when he inquired about the Mountain View apartment, he was
informed there was only one vacancy. Though his application was approved on
December 15, he did not pick up the keys until December 27, 2016. Manish put down a
security deposit for the apartment on December 4, 2016. After confirming that this was
the day on which Manish returned from India, the trial court asked if he put down a


                                              8
deposit for this apartment before making inquiries about other apartments. Manish
responded that he also put down a deposit for an apartment in Cupertino.
       On December 30, 2016, Manish was at the apartment complex in Mountain View
to see if he could cancel his lease because he had “found an apartment in Cupertino.” As
he was going to his apartment to retrieve his belongings, he saw Priyanka and
unsuccessfully tried to hide from her. When she saw him, she “was almost hysterical,”
screaming and yelling at him, saying she would call the police. Manish begged her not
to, saying he was “not here for her.” He denied knowing that Priyanka still lived in the
complex at any point in time before running into her on December 30, 2016. After
speaking to the police that day, Manish did not return to the apartment until January 30,
2017, when he dropped off the keys. He denied seeing or trying to contact Priyanka at
any time since December 30, 2016.
       On cross-examination, Manish admitted that he sent Priyanka an e-mail in
November 2016 “reminding her that her green card was going to expire.” He also sent
her an e-mail informing her that he was sending a complaint letter to the federal
immigration service and admitted that he did send such a letter because he “sponsor[ed]
her green card.” Manish continued that “the whole marriage was [a] fraud and it was
only for immigration purposes.” Manish also admitted sending a letter to Priyanka’s
employer, with a number of documents attached, in which he claimed Priyanka married
him only for a green card and that she falsified her résumé.
       Manish accused Priyanka of “perpetrat[ing] violence against” him in July 2015,
but he did not call the police or seek a restraining order against her. He regrets not doing
so but was trying to save his marriage at the time.
                      c.     Trial court’s ruling
       After the parties submitted, the trial court granted Priyanka’s request for a DVRO
for a five-year period. In explaining its decision, the trial court stated that the “central
fact at [sic] dispute in this [DVRO] hearing” is whether Manish moved into an apartment
                                               9
“directly next door” to Priyanka’s apartment knowing that she still lived there. The trial
court found Manish’s testimony was not credible and it was “convinced that [Manish] has
come into this courtroom and lied repeatedly on significant points.” Accordingly, the
court was convinced that Manish knew Priyanka was still living in the apartment
complex when he signed the lease, and it was “trouble[d] . . . that any person would come
into this court and lie under oath.” The trial court believed that Manish “was hoping to
reestablish communication and a relationship” with Priyanka.
               2.     Legal principles and analysis
                      a.      Relevant legal principles and standard of review
       The Domestic Violence Protective Act (DVPA) permits a court, upon a showing
of “reasonable proof of a past act or acts of abuse” (§ 6300, subd. (a)), to issue a
protective order restraining any person from contact, for the purpose of preventing a
recurrence of domestic violence. (Ibid.) Under the DVPA, “ ‘abuse’ means any of the
following: [¶] (1) To intentionally or recklessly cause or attempt to cause bodily injury.
[¶] (2) Sexual assault. [¶] (3) To place a person in reasonable apprehension of imminent
serious bodily injury to that person or to another. [¶] (4) To engage in any behavior that
has been or could be enjoined pursuant to Section 6320.” (§ 6203, subd. (a), italics
added; see Nakamura v. Parker (2007) 156 Cal.App.4th 327, 334.) The kinds of
behavior which may be enjoined pursuant to section 6320 include “stalking,
threatening, . . . harassing, telephoning, . . . contacting, either directly or indirectly, by
mail or otherwise, . . . or disturbing the peace of the other party.” (Id., subd. (a); see
Nakamura, supra, at p. 334.)
       Because “a trial court has broad discretion in determining whether to grant a
petition for a restraining order under [the DVPA],” we review the trial court’s decision to
issue such a restraining order for an abuse of discretion. (In re Marriage of Fregoso &
Hernandez (2016) 5 Cal.App.5th 698, 702 (Marriage of Fregoso).) “The appropriate test
for abuse of discretion is whether the trial court exceeded the bounds of reason. When
                                               10
two or more inferences can reasonably be deduced from the facts, the reviewing court has
no authority to substitute its decision for that of the trial court.” (Shamblin v. Brattain
(1988) 44 Cal.3d 474, 478-479.) When reviewing a trial court’s factual findings for
substantial evidence we accept as true all evidence tending to establish the correctness of
the trial court’s findings, resolving every conflict in the evidence in favor of the
judgment. (Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.) “Under the
substantial evidence test, the pertinent inquiry is whether substantial evidence supports
the court’s finding—not whether a contrary finding might have been made.” (Marriage
of Fregoso, supra, at p. 702.) “The testimony of one witness, even that of a party, may
constitute substantial evidence.” (Id. at p. 703.)
                        b.   Analysis
       Manish argues the trial court erred in granting Priyanka’s request for a DVRO
because there was not substantial evidence he engaged in conduct which qualified as
domestic violence under the DVPA. He focuses on the fact that there were no allegations
or evidence showing he physically abused or threatened Priyanka on December 30, 2016,
or that his “conduct destroyed Priyanka’s mental or emotional calm.” We disagree.
       The DVPA is not limited, as Manish seems to suggest, to circumstances involving
physical harm, threats of physical harm, or conduct resulting in severe emotional distress
to the person seeking the restraining order. Section 6320 lists a wide range of conduct
that may be enjoined, including stalking, which was one of the principal complaints
Priyanka made. The trial court even noted that “the central fact at [sic] dispute in this
[DVRO] hearing” is whether Manish was stalking Priyanka by moving into an apartment
“directly next door.”
       In his briefing, Manish points out that Priyanka offered no evidence to establish
that he “knew she was still residing at the apartment” or evidence “disputing that the
apartment . . . was zoned for” one of the public high schools Manish was considering for
his son. As noted above, though, when we engage in a review under the substantial
                                              11
evidence standard, it does not matter whether some of the uncontroverted evidence
presented might have supported a contrary result below. (Marriage of Fregoso, supra, 5
Cal.App.5th at p. 702.) Having heard the testimony of Valenzuela, Priyanka, and Manish
about the incident on December 30, 2016, the trial court determined that Manish engaged
in stalking by moving into the Mountain View apartment knowing that Priyanka still
occupied the apartment immediately across from his. The trial court rejected Manish’s
testimony that he was unaware Priyanka still lived in the complex or that his sole
motivation was to secure an address that would allow his son to attend a local public high
school, finding that Manish “lied repeatedly on significant points.”
       Priyanka had also requested a DVRO due to Manish’s repeated failure to respect
her wishes that he not contact her. At the hearings, Priyanka authenticated several
e-mails—either from herself or her attorney—requesting that Manish no longer attempt
to communicate with her or her family. As Priyanka testified, Manish simply ignored
those requests and continued to call and send her e-mails. There was substantial evidence
that Manish engaged in this conduct, which would constitute harassment, unwanted
contact, and disturbing the peace under section 6320.
       Accordingly, there was substantial evidence to support the issuance of the DVRO
based on Priyanka’s allegations of stalking and unwanted contact and the trial court did
not abuse its discretion in doing so.
       C.     H045203—Order rescinding award of attorney fees to Manish
              1.     Relevant facts and hearings
       On March 8, 2017, the trial court awarded Manish attorney fees in the amount of
$10,000 under section 6344 as he was the prevailing party on Priyanka’s previous request
for a DVRO which was heard and denied on September 7, 2016. The order required that
the fees were to be paid in full on or before April 13, 2017, but it is undisputed that
Priyanka made no payments to Manish pursuant to this order.


                                             12
       On July 20, 2017, Priyanka filed a request for an order awarding her $10,000 in
attorney fees and costs as the prevailing party under section 6344 and asked that any
award “be offset against [Manish]’s attorney’s fee award in the amount of $10,000.” The
hearing on Priyanka’s request was noticed for August 17, 2017.
       On August 10, 2017, the parties appeared for a hearing on Manish’s order to show
cause (OSC) why Priyanka should not be found in contempt for failing to pay the
attorney fees awarded to Manish in the March 8, 2017 order.9 The trial court suggested
that the hearing on Manish’s OSC be continued so that it could be heard in conjunction
with Priyanka’s request for attorney fees. The trial court stated that it was not inclined to
find Priyanka in contempt for failing to pay Manish attorney fees, as it was “just about
ready to make an award to [Priyanka]—when we get to [the continued hearing]—that
would exceed the $10,000 of attorneys’ fees to [Manish].” Manish’s counsel noted that
because there was currently no order awarding Priyanka attorney fees, there could be no
offset against the award of fees to Manish. The trial court responded that it would “solve
that problem” by staying Priyanka’s “obligation to pay the initial $10,000 attorney fee
award until I hear [Priyanka’s]” request for attorney fees.
       At the continued hearing, Manish’s counsel objected that Priyanka’s counsel had
not provided billing statements to support her request for attorney fees.10 The trial court
directed Priyanka’s counsel to provide billing statements but further noted that, at the

       9 Neither party included Manish’s request for an OSC in their respective
appendices, but according to the register of actions Manish filed it on June 23, 2017, just
three days after Priyanka filed her request for attorney fees.
       10 Manish argued in his opening brief that the trial court erred in awarding attorney

fees because Priyanka’s attorney did not provide these billing statements. Having
subsequently discovered that his trial counsel did timely receive billing statements from
Priyanka’s attorney, Manish withdrew this argument in his reply brief, and we will not
address it further. In that same brief, Manish now argues for the first time that the trial
court abused its discretion in awarding attorney fees to Priyanka under section 6344
because it failed to evaluate Manish’s ability to pay. We find no good cause to consider
this new argument. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
                                             13
previous hearing, it had expressed its belief that Manish’s OSC was “frivolous.” The trial
court “urge[d] the parties to talk” because Priyanka’s counsel is “willing to do a
walkaway with an offset of the prior award. [¶] And his fees for this DVRO seems to me
to make a lot of sense. But it’s up to you. If you want to litigate it further, we can litigate
it further.” Manish’s counsel expressed a desire to “go ahead with the [OSC],” and the
trial court continued the matters to September 11, 2017.
       At the September 11 hearing, Manish’s counsel asked that the court take into
consideration the fact that Manish was unemployed and that the court had previously
denied two “frivolous” DVRO requests made by Priyanka. The trial court responded that
it “recall[ed] the first one that [Priyanka] filed. . . . I’m sorry, in retrospect, [that] I
denied it.” The trial court awarded $10,562.50 in attorney fees to Priyanka.
       The court then turned to Manish’s OSC. After noting that it had previously stayed
the March 8, 2017 attorney fees order, the trial court said that it was now “wiping that
order out.” Manish’s counsel responded, “Your Honor, if you have already made up your
mind . . . then what can I say?” When Manish’s counsel cautioned that the trial court’s
rulings would “just lead to more appeals,” the trial court replied, “Your client should
have considered all of that before he got on the witness stand and gave untruthful
testimony.”
       Manish challenges the order rescinding the March 8, 2017 award of attorney fees.
He argues that, because Priyanka did not appeal from that order and the time for her to do
so had expired, the trial court no longer had jurisdiction to reconsider the order, let alone
rescind it. Alternatively, Manish contends the rescission order was an “unauthorized
sanction” for his refusal to withdraw his OSC seeking to hold Priyanka in contempt for
failing to pay attorney fees.
       We agree that the trial court erred in rescinding the March 8, 2017 order, but not
because the trial court lacked jurisdiction to reconsider it. The trial court rescinded the
order based on new evidence, rather than the evidence presented at the original
                                                14
proceeding. By so doing, the court in effect improperly granted a new trial, a result
which lies outside its inherent powers. Accordingly, we need not reach the jurisdictional
question or the alternative argument that rescinding the order was an unauthorized
sanction.
               2.     Applicable legal standards and analysis
       In Le Francois v. Goel (2005) 35 Cal.4th 1094, the California Supreme Court held
that a trial court has inherent authority to reconsider “its prior interim rulings on its own
motion.” (Id. at p. 1105, italics added.) In re Marriage of Barthold (2008) 158
Cal.App.4th 1301 (Barthold) concluded that the rationale of Le Francois could properly
be extended to final orders as well. (Id. at p. 1312.) In a footnote, the Barthold court was
careful to point out that it was not presented with, nor did it decide, “the issue whether a
trial court can reconsider an appealable order on its own motion after the time to appeal
from that order has expired.” (Id. at p. 1313, fn. 9.)
       However, the Barthold court also made clear that, “in order to grant
reconsideration on its own motion, the trial court must conclude that its earlier ruling was
wrong, and change that ruling based on the evidence originally submitted.” (Barthold,
supra, 158 Cal.App.4th at p. 1314.) Where a trial court “expressly reject[s] as unreliable
or inaccurate evidence adduced at the first trial,” the trial court is not reconsidering its
prior order, but is instead retrying issues of fact, i.e., granting a new trial. (In re
Marriage of Herr (2009) 174 Cal.App.4th 1463, 1470.) “[I]n contrast to grants of
reconsideration, courts have no inherent power to grant a new trial: ‘[t]he right to a new
trial is purely statutory . . . .’ ” (Id. at p. 1471.) “The power of the trial court to grant a
new trial may be exercised only by following the statutory procedure and is conditioned
upon the timely filing of a motion for new trial.” (Sanchez-Corea v. Bank of America
(1985) 38 Cal.3d 892, 899.) A trial court may not order a new trial sua sponte. (Ibid.)
       In this case, the trial court did not change its ruling based on the evidence
originally submitted at the hearing on Manish’s request for an order of attorney fees.
                                               15
Instead, it rescinded that prior order because Manish presented “untruthful testimony” at
the hearing on the 2017 DVRO and it was now “sorry” it denied Priyanka’s previous
DVRO request. This was not reconsideration, but instead a new trial of the issue which
was then summarily decided against Manish. As the trial court lacked the power to sua
sponte grant a new trial, we will reverse the October 5, 2017 order rescinding the award
of attorney fees to Manish.
       D.     H046567—Order denying the petition for nullity
       The trial court held a contested hearing on Manish’s petition for nullity on
September 7, 2016, and the order denying that petition was entered October 31, 2016.11
              1.     Evidence presented at contested hearing
                     a.       Priyanka’s testimony
       Priyanka testified she first met Manish during a hiking trip in August 2013 and
they began dating sometime the next month. At first, the relationship was “more . . .
Manish . . . trying to help me out” with finding employment in the pharmaceutical
industry. Priyanka had resigned from her previous job in August 2013 because she “was
not liking the work and . . . was feeling very homesick.” She and Manish talked a lot
“about our personal lives and . . . about our past.” Priyanka felt he was “really a good
listener and [was] trying to be a really good friend to me.” She admitted sending Manish
an e-mail on August 29, 2013, attaching her résumé and saying it would be “problematic”
for her to remain in the United States without a “project” under her work visa. In a
“P.S.” to that e-mail, she asked for assistance “finding a bakra (citizen) who is willing to
marry me :-)).”12




       11See footnote 5, ante.
       12Priyanka testified that, in this context, she used the word “bakra” to mean “a
scapegoat.” There was no testimony regarding her use of the emoji “:-))” at the end of
her postscript.
                                             16
       In early October 2013, Manish asked Priyanka to meet him at a fast-casual
restaurant for breakfast. To her surprise, Manish had brought flowers and a ring to the
restaurant, where he proposed to her. Priyanka did not accept his proposal because it was
“too soon” for her. Priyanka returned to India at some point thereafter.
       In November 2013, Manish travelled to India, and in front of Priyanka’s parents,
he again proposed to her. This time, she accepted, although she was “kind of guarded
because [she] didn’t know him completely.” Priyanka said she loved him but was
cautious as “he might change his mind or . . . there’s something else in his mind.”
Priyanka also had concerns because Manish was 10 years older than her and he had two
children from a prior marriage.
       Priyanka remained in India until June 5, 2014, but she and Manish spoke often via
video, as well as through text messages and e-mails. Manish obtained a fiancée visa for
her, which required that they be married within three months. After she returned from
India, Priyanka and Manish were married on June 12, 2014. Priyanka believes that
Manish applied for her green card around June 25 or June 26, 2014.
       Sometime in early August 2014, Manish began telling Priyanka that if she did not
do what he wanted her to do, he would “do something with [her] green card.” He
described himself as Priyanka’s “savior” from a “miserable life in India,” telling her to
“cook and clean” and that she could not have friends. Priyanka told Manish that she
married him for a “peaceful, stable life,” not “for the green card.” If he could not give
her that peace, she told him she would rather annul the marriage, even though she did not
yet have a green card. Priyanka did search online for information about annulments
around that time but did not proceed further as she felt maybe it was not the right time as
she was “very disturbed.”
       During their honeymoon in late August, Priyanka got into a “squabble” with
Manish because he kept her cell phone and iPad in the hotel room safe the whole day
when she wanted to respond to an e-mail from a pharmaceutical company about a job.
                                             17
Priyanka denied that she began throwing things around the room, as Manish claimed, but
she did contact the front desk to help her open the safe.
       In early October 2014, Priyanka and Manish were interviewed by an immigration
officer in connection with her application for a green card. Priyanka said that the officer
asked about whether they were living together and whether Priyanka was covered by
Manish’s health insurance. They were not “intensely questioned about the relationship”
by the officer.
       Priyanka recalled having “three major fights” during their marriage. The first was
when she briefly considered annulment in early August 2014. The second was in January
or February 2015, when Manish started asking her to contribute her entire income
towards his own expenses. The third was in July 2015 when they got into an argument
and Priyanka both slapped and pushed Manish for “doing . . . bad things” to her.
       Eventually, Priyanka decided that Manish wanted “a nanny for his kids and
somebody who could support his dream for his kids.” In Priyanka’s mind, Manish “just
got [her] the green card and thought that [she] will be a slave to him . . . [who] will agree
to everything he wants . . . and . . . will give him all the money” that she earns.
                      b.     Rashmi Tiwari
       Rashmi Tiwari testified that Priyanka, who was friends with Tiwari’s roommate,
stayed at her house for a few days in July 2015 after Priyanka had a fight with Manish.
Tiwari said that Priyanka told her she did not want to divorce Manish until she obtained
her green card.
                      c.     Immigration law expert
       Manish called Yemi Getachew to testify as an expert on immigration law.
Getachew testified that “marriage to a United States citizen is the quickest path to U.S.
citizenship.” As a result, United States immigration officials “take[] it very seriously
and . . . scrutinize[] cases at various points to determine that [the] relationship is real.”
After the marriage occurs, the immigration officer conducts an in-person interview with
                                               18
the couple to confirm whether their “relationship exists and is real” and whether there is
any reason to find that the foreign national “should be declared inadmissible.” If “there’s
any indication to the [immigration] officer that there are any problems in the marriage at
all, the . . . officer must deny and will deny the application” for a green card.
       Getachew testified that the immigration officer would look for documents to
demonstrate that the marriage was genuine, such as joint bank accounts, joint insurance,
joint mortgage or other debt. The trial court clarified that one of the factors an
immigration officer would consider in deciding if the marriage was bona fide is whether
the couple continued to have sexual relations. On cross-examination, Getachew said that,
in deciding whether a marriage is bona fide, there are multiple factors to be considered
and no single factor is dispositive.
       Getachew reviewed the records in this case and it appeared to her that the
immigration officer was persuaded by the October 2014 interview that Manish and
Priyanka had a bona fide marriage. However, she also testified that, because Priyanka
was “out-of-status” by virtue of leaving her employment at the end of July 2013, her only
pathway for her to become a citizen was through marriage. According to Getachew, even
if the marriage fails, the foreign national could still obtain a green card by establishing
that they entered the marriage in good faith, but it failed through no fault of their own, or
they were subjected to extreme cruelty and battery by the citizen spouse.13
                     c.      Shalini Bhatnagar
       Shalini Bhatnagar testified she spoke with Priyanka often during her marriage to
Manish and Priyanka told her she left the United States in October 2013 because she was


       13 Near the conclusion of Getachew’s testimony, the trial court imposed strict time
limits on the parties as there was “an hour and fifteen minutes left for this hearing.” The
trial court indicated it had not yet heard Manish’s testimony, so it allocated 15 minutes to
that portion of the hearing, leaving an hour to hear Priyanka’s request for a DVRO. The
trial court explained that “we had a day set aside for this and I’m not going to carry this
over.”
                                              19
unable to find employment. Priyanka never told Bhatnagar that Manish was abusive to
her or hit her. Bhatnagar said Priyanka told her she got upset with Manish, “hit [him]
twice” and had to move out so it would not happen again as she “cannot control” herself.
                     d.     Manish’s testimony
       Manish testified that he met Priyanka in August 2013. He understood she was
unemployed and was looking for a new job to transfer her work visa. They were
“joking” about getting married prior to him initially proposing to her. Manish understood
that Priyanka wanted to remain in the United States and have a career.
       Manish now believes that she “defrauded” him and the “whole marriage was a
scam just to get a green card.” Before applying for the fiancée visa, Manish told her
about his children from a prior marriage and Priyanka told him about her “problems with
[her] immigration status” as well as an arrest on her record. He decided to proceed with
the marriage because he “did love her a lot.”
       Because the immigration officer would look at commingling of assets, Manish
added Priyanka to his checking account, but she never added his name to her accounts.
He also said that she never changed her name on her social media accounts. Manish
denied ever threatening to divorce Priyanka but said she was “the one who threatened to
divorce me all the time.”
       On cross-examination, Manish said that he has made social media posts accusing
Priyanka of committing marriage fraud in order to obtain citizenship and employment in
the United States. However, he has also made posts professing his continued love for
Priyanka and expressing a desire that she return to him.
       In response to the trial court’s question, Manish confirmed that, during the 16
months he and Priyanka were together, there were “good times as well as bad times.” He
also confirmed that they had “plenty” of consensual sex during that time period, and the
last time they had sex was in December 2015, following their separation.


                                            20
                     e.     Trial court’s ruling
       At the conclusion of the hearing, the trial court denied the petition for
nullity, finding that Manish had failed to prove, by clear and convincing evidence,
that his consent to the marriage was obtained by fraud. The trial court said, “this
marriage . . . was not a black-and-white situation where we have a woman . . . marrying
solely—or even primarily—for the purpose of visa fraud. [¶] . . . [T]here were visa
applications[,] . . . [which] may have played some indeterminate role. But I think that
this was a nuance [sic] marriage.” In support of its finding, the trial court noted Manish’s
admissions that the marriage had “good times and bad times,” that the parties engaged in
consensual sex, both during the marriage and at least once after separating, and that there
was some mingling of finances. The trial court also pointed out that Manish and
Priyanka, just two months after Priyanka briefly considered seeking an annulment,
persuaded the immigration officer that the marriage was bona fide.
              2.     Applicable legal standards and analysis
       Manish argues the trial court utilized the wrong standard of proof in evaluating his
petition to nullify the marriage. The trial court required that Manish prove his case by
clear and convincing evidence even though the California Supreme Court has held that
fraud need only be proved by a preponderance of the evidence. We disagree.
       Section 2210, subdivision (d) provides a marriage may be annulled when “[t]he
consent of either party was obtained by fraud, unless the party whose consent was
obtained by fraud afterwards, with full knowledge of the facts constituting the fraud,
freely cohabited with the other as his or her spouse.” “ ‘A marriage may be annulled for
fraud only in an extreme case where the particular fraud goes to the very essence of the
marriage relation.’ ” (In re Marriage of Goodwin-Mitchell & Mitchell (2019) 40
Cal.App.5th 232, 238 (Mitchell).) “A concealed intent to marry solely to obtain
favorable immigration status will also support annulment.” (Ibid.)


                                             21
       In Liodas v. Sahadi (1977) 19 Cal.3d 278, the California Supreme Court, after
noting there was division among the Courts of Appeal on the appropriate standard of
proof in civil actions in which fraud is alleged, cited and discussed a number of its own
prior decisions which “should have laid to rest the early belief that civil fraud must be
proved by more than a preponderance of the evidence.” (Id. at p. 289.) The Supreme
Court also noted that “the matter is now governed by Evidence Code section 115, . . .
which declares in relevant part that ‘Except as otherwise provided by law, the burden of
proof requires proof by a preponderance of the evidence.’ ” (Id. at p. 290.)
       However, this rule is not as inflexible as Manish would have us believe. In
Weiner v. Fleischman (1991) 54 Cal.3d 476, the California Supreme Court explained that
when determining the proper standard of proof to apply “ ‘[l]aw,’ as referenced in
[Evidence Code] section 115, includes ‘constitutional, statutory, and decisional law.’
(Evid. Code, § 160.)” (Id. at p. 483.) Accordingly, the trial court must inquire “whether
constitutional, statutory or decisional law (i.e., case law) requires a burden of proof
higher than preponderance of the evidence.” (Ibid.) To that end, “[p]roof by clear and
convincing evidence is required ‘where particularly important individual interests or
rights are at stake,’ such as the termination of parental rights, involuntary commitment,
and deportation.” (Id. at p. 487.) We now examine whether annulment based on an
allegation of fraud implicates such important interests or rights. As it happens, a long
line of cases holds that it does.
       “It has long been the rule that because of its peculiar position as a silent but active
party in annulment proceedings the state is particularly interested in seeing that no
marriage is declared void as the result of fraud unless the evidence in support thereof is
both clear and convincing. Thus it has been said: ‘The state has a rightful and legitimate
concern with the marital status of the parties to the action, . . . and the fraud relied upon
to secure a termination of the existing status must be such fraud as directly affects the
marriage relationship and not merely such fraud as would be sufficient to rescind an
                                              22
ordinary civil contract.’ (Bing Gee v. Chan Lai Young Gee, 89 Cal.App.2d 877, 885; see
also Mayer v. Mayer, 207 Cal. 685.)” (Williams v. Williams (1960) 178 Cal.App.2d 522,
525.) “Because public policy strongly favors marriage, the fraud must be shown by clear
and convincing evidence.” (Mitchell, supra, 40 Cal.App.5th at p. 238.)
       Accordingly, the trial court properly required Manish to show fraud by clear and
convincing evidence in order to prevail on his petition for nullity. We now turn to
whether the trial court’s factual determination was supported by substantial evidence.
(See Mitchell, supra, 40 Cal.App.5th at p. 238 [substantial evidence review applies in an
appeal from a judgment required to be based on clear and convincing evidence].)
       Manish contends substantial evidence does not support the trial court’s finding
that there was not clear and convincing evidence of fraud. This argument goes to the
weight of the evidence, which was for the trial court to assess. (In re Marriage of Liu
(1987) 197 Cal.App.3d 143, 156.) The court based its decision on several of Manish’s
admissions, e.g., that there was some mingling of the parties’ finances, that there were
“good times and bad times” in the marriage, and that the parties engaged in consensual
sex, not just during the marriage but at least on one occasion after separating. In
addition, the trial court took note of the fact that, even after Priyanka admitted that she
considered seeking an annulment in August 2014, both she and Manish were able to
persuade the immigration officer in October 2014 that the marriage was bona fide.
       Based on the evidence presented, the trial court found that, though Priyanka’s
immigration status “may have played some indeterminate role” in the marriage, it was not
enough to establish fraud “ ‘go[ing] to the very essence of the marriage relation.’ ”
(Mitchell, supra, 40 Cal.App.5th at p. 238.) “Although there was conflicting evidence
presented at trial, we are bound by the trial court’s interpretation of the facts.” (In re
Marriage of Liu, supra, 197 Cal.App.3d at p. 156.) Accordingly, we find that the trial
court properly denied Manish’s petition for nullity.


                                              23
III.   DISPOSITION
       The order granting Priyanka’s petition for a DVRO is affirmed (H045092).
       The order rescinding the March 8, 2017 award of attorney fees in favor of Manish
is reversed (H045203).
       The order denying Manish’s petition for nullity is affirmed (H046567).
       Priyanka shall recover her costs on appeal in H045092 and H046567.
       The parties shall bear their own costs on appeal in H045203.




                                           24
                                    Premo, Acting P.J.




WE CONCUR:




           Elia, J.




           Bamattre-Manoukian, J.




Marriage of Ankola
H045092, H045203, H046567
Trial Court:                  Santa Clara County Superior Court
                              Superior Court No. 115-FL173072


Trial Judge:                  Hon. James E. Towery


Counsel for Appellant:        Law Offices of Adam R. Bernstein
Manishkumar Ankola            Adam R. Bernstein

Case Nos. H045092 & H045203

Counsel for Appellant:        Brian Beckwith
Manishkumar Ankola

Case No. H046567

Counsel for Respondent:       Law Offices of Peter A. Lindstrom
Priyanka Ankola               Peter A. Lindstrom

Case Nos. H045092, H045203,
          H046567




Marriage of Ankola
H045092, H045203, H046567
