Filed 9/18/26 Torian v. Herchko CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
NATHAN S. TORIAN, B351855
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 22PDRO01734)
v.
GRIFFEN J. HERCHKO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County. Timothy Martella, Judge. Affirmed.
Griffen J. Herchko, in pro. per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________________________________
Griffen J. Herchko appeals from the denial of a motion to vacate
a three-year civil harassment restraining order. The restraining order
was entered approximately two-and-a-half years before Herchko moved
to vacate it. Herchko’s motion was procedurally improper and
untimely. Moreover, he fails to present an adequate record on appeal.
We accordingly affirm the trial court’s order.
BACKGROUND
In December 2022, Nathaniel Torian filed a request for a civil
harassment restraining order against Herchko. In support of his
request, Torian provided a written statement that he had met Herchko
one time, as Herchko previously dated his sister. According to Torian,
in November 2021, Herchko began sending Torian repeated, unwanted
messages and e-mails claiming that Torian was in possession of a mind
control torture device, and Herchko made posts on the Internet making
similar claims and listing Torian’s personal contact information.
Torian submitted screenshots of numerous messages from
Herchko. A sampling of these messages included a claim that Torian
had stolen $250,000 in merchandise and had “the intent to harm with
your radar sound system.” Herchko continued, “They are using the
Frey Effect. Microwave technology to communicate with me. Not only
can they use thermal expansion to vibrate my inner ear with
microwaves they can also Monitor my inner ear staple to simply hear
me talk to them.” He also claimed, among other things, that Torian
and others “built a telecommunications system that has the ability to
render humans civil liberties obsolete through covert measures of video
and audio surveillance. This system, using microwave and RADAR
systems, is also capable of inflicting discomfort and harm on humans at
a range of 2000 feet while rendering useless any obstacles in its
directed path.” According to Torian, Herchko sent similar messages to
Torian’s relatives.
The trial court entered a temporary restraining order against
Herchko and in favor of Torian and his wife in December 2022.
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Following entry of the temporary restraining order, Torian sought a
civil harassment restraining order after hearing (Code Civ. Proc.,1
§ 527.6) against Herchko.
Herchko filed an affidavit in opposition to Torain’s request for
restraining order after hearing. In his affidavit, which totaled about 60
single-spaced pages, Herchko detailed what he believed was Torian’s
use of an electromagnetic radiation communications system that allows
the user to remotely implant thoughts into the victim’s head and inflict
pain. Herchko related abnormalities in his internal monologue and
physical sensations that he believed demonstrated the existence of and
flaws in the communications system. In his affidavit, Herchko also
accused Torian of falsifying evidence and committing perjury in
obtaining the temporary restraining order, though he acknowledged
that he sent numerous messages to Torian, his family, and
acquaintances and posted statements with similar content on the
Internet.
The trial court held a bench trial on February 23, 2023. Herchko
appeared remotely, while Torian appeared with counsel. After hearing
testimony and admitting documentary evidence, the trial court issued a
civil harassment restraining order after hearing for a duration of three
years. Among other things, the restraining order prohibited Herchko
from contacting Torian or his wife, or publishing their name or contact
information online.
Two-and-a-half years later, in September 2025, Herchko filed a
motion to set aside the judgment (the restraining order) pursuant to
section 473, subdivision (b). The stated reasons were asserted fraud
upon the court allegedly perpetrated by Torian’s attorney, which
included alleged suppression of exculpatory evidence and misleading
Herchko regarding procedure. Herchko additionally argued that,
1 Undesignated statutory references are to the Code of Civil
Procedure.
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although the trial court accepted the filing of Herchko’s affidavit he
submitted in opposition to the requested restraining order, the court
misfiled the affidavit and failed to review or reference it. Torian
opposed the motion to vacate.
The trial court held a hearing on the motion to vacate in October
2025. After advising the parties that it had read all moving papers and
hearing oral argument, it denied the motion.
Herchko filed a notice of appeal from the trial court’s order.
DISCUSSION
Herchko attempts to appeal from the order denying his motion to
vacate the civil harassment restraining order. He argues that the trial
court improperly failed to consider his affidavit opposing the request for
restraining order and, because of this error, his motion to vacate the
restraining order should have been granted.2
I. Herchko’s motion was improper and untimely
Herchko’s appeal fails for a number of fundamental reasons.
First, his purported motion to vacate was procedurally improper.
Herchko brought his motion under section 473, subdivision (b). Section
473, subdivision (b), however, only allows for relief from a judgment or
order “taken against the party through the party’s mistake,
inadvertence, surprise, or excusable neglect.” And mandatory relief
under the subdivision “only applies to a default, a default judgment, or
a dismissal.” (The Urban Wildlands Group, Inc. v. City of Los Angeles
(2017) 10 Cal.App.5th 993, 996.)
None of these conditions were present here. Herchko did not
argue that the restraining order was issued due to a mistake or
negligence of his own, and no default or dismissal was entered.
2 No respondent’s brief was filed. “[W]e do not treat the failure to
file a respondent’s brief as a ‘default’ (i.e., an admission of error) but
independently examine the record and reverse only if prejudicial error
is found.” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203.)
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Instead, Herchko argued that the trial court committed error by issuing
the restraining order without considering his affidavit. Under these
circumstances, Herchko’s proper challenge would have been a timely
motion for new trial under section 663, which allows for a judgment or
decree to be vacated for resting on an incorrect or erroneous legal basis,
or if it is inconsistent with or not supported by the facts. (§ 663,
subd. 1.) Herchko failed to bring a motion for new trial.
Second, even if Herchko’s motion could be construed as a motion
for new trial, it would be untimely. Herchko would have had to give
notice of his intention to file a new trial motion within, at latest, 180
days after entry of the order. (§ 663a, subd. (a)(2).) The time period for
giving notice would have run by August 22, 2023, more than two years
before Herchko filed his motion to vacate the judgment. This time
period was jurisdictional and could not have been disregarded by the
court. (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 342.)
And, even if the restraining order could have been challenged under
section 473, subdivision (b), as attempted, the challenge likewise was
untimely, since section 473, subdivision (b) sets a six-month filing
deadline from entry of the judgment or order. (See also Arambula v.
Union Carbide Corp. (2005) 128 Cal.App.4th 333, 344.) Under either
theory, Herchko’s motion was untimely.
On appeal, Herchko argues that the motion instead should have
been considered under section 473, subdivision (d), which allows the
court to “set aside any void judgment or order.” If the restraining order
was properly challenged as void under section 473, subdivision (d),
Herchko’s motion could potentially be timely, since “[t]here is no time
limit to attack a judgment void on its face.” (Pittman v. Beck Park
Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021 (Pittman).) There is
a distinction, however, between a judgment or order that is void, and
one that is merely voidable. (Lee v. An (2008) 168 Cal.App.4th 558,
563.) A challenge to a voidable judgment under section 473 is subject
to the general six-month time limit. (Ibid.)
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“A court can lack fundamental authority over the subject matter,
question presented, or party, making its judgment void, or it can
merely act in excess of its jurisdiction or defined power, rendering the
judgment voidable.” (In re Marriage of Goddard (2004) 33 Cal.4th 49,
56 (Goddard).) Most procedural errors, including the “ ‘improper
admission or rejection of evidence,’ ” do not render a judgment or order
void. (Id. at pp. 56–57.) “An order is considered void on its face only
when the invalidity is apparent from an inspection of the judgment roll
or court record without consideration of extrinsic evidence. [Citations.]
. . . If the invalidity can be shown only through consideration of
extrinsic evidence, such as declarations or testimony, the order is not
void on its face.” (Pittman, supra, 20 Cal.App.5th at p. 1021.)
Under Herchko’s theory, the court improperly considered the
parties’ evidence in issuing the restraining order. Herchko contends
that the minute order issued on the date of the restraining order shows
that the trial court considered Torian’s evidence but did not consider
his affidavit. Even if correct, any error would not result in the
restraining order being void, since such error would not indicate a lack
of the court’s fundamental authority, but only an improper rejection of
evidence. (Goddard, supra, 33 Cal.4th at p. 56.) Thus, if we were to
consider Herchko’s challenge as one brought under section 473,
subdivision (d), it would still be untimely.
II. The record on appeal is inadequate
The record on appeal only includes a clerk’s transcript and does
not contain a reporter’s transcript of any trial court proceedings,
including the restraining order hearing or the hearing on the motion to
vacate. Nor does the record contain a suitable substitute to a reporter’s
transcript, such as a settled statement under California Rules of Court,
rule 8.137. The inadequate record presented by Herchko is another,
independent reason that the trial court’s order must be affirmed.
“If an appellant intends to raise any issue that requires
consideration of the oral proceedings in the superior court, the record
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on appeal must include a record of these oral proceedings.” (Cal. Rules
of Court, rule 8.120(b).) “ ‘ “[I]f the record is inadequate for meaningful
review, the appellant defaults and the decision of the trial court should
be affirmed.” ’ ” (Foust v. San Jose Construction Co., Inc. (2011) 198
Cal.App.4th 181, 187.) “ ‘Failure to provide an adequate record on an
issue requires that the issue be resolved against [appellant].’ ” (Ibid.)
Again, Herchko’s primary basis for his motion to vacate was that
the trial court failed to consider his evidence, the affidavit, at the
restraining order hearing. Herchko notes that the trial court’s
February 23, 2023 minute order for the restraining order hearing
stated that numerous exhibits submitted by Torian were “admitted into
evidence.” In contrast, the minute order did not reference the lengthy
affidavit submitted by Herchko prior to the hearing. Herchko also
observes that the online docket for the case appeared to erroneously list
the affidavit as being filed by the “Petitioner” in the case, who was
Torian.
Without a reporter’s transcript of the restraining order hearing,
however, it is not possible for this court to conclude that the trial court
did not receive or consider Herchko’s affidavit. It is possible that, at
the hearing, Torian (through counsel) objected to the affidavit and it
was excluded from evidence. It is also possible that Herchko failed to
move the affidavit into evidence, which may explain why it was not
listed in the court’s minute order. In short, without an adequate
record, Herchko cannot demonstrate that any procedural improprieties
occurred at the restraining order hearing.
Similarly, Herchko’s failure to submit a reporter’s transcript or
its equivalent for the hearing on the motion to vacate also precludes a
finding of error. To the extent that Herchko’s motion raised possible
error in the issuance of the restraining order, the record of oral
argument may support the trial court’s ruling. For example, the trial
court may have explained that it did consider the affidavit, or it may
have indicated that the affidavit was not properly considered. In any
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event, without a record of the hearing, we are left to guess at the
content of the proceedings. We cannot reverse a trial court order based
on mere speculation.
DISPOSITION
The order is affirmed. Herchko shall bear his own costs on
appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
GOORVITCH, J.
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