Filed 7/30/26 Van Dyke v. Katz CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
PRISCILLA VAN DYKE, C104964
Plaintiff and Appellant,
(Super. Ct. No. 24DV01151)
v.
JOSHUA KATZ,
Defendant and Respondent.
The unmarried parties before us stipulated to, inter alia, dismiss their competing
applications for a domestic violence restraining order (DVRO) against each other and the
trial court entered the stipulation as an order. Two months later, the trial court granted
appellant Priscilla’s request to set aside specific provisions of the order that dealt with
property division. Priscilla did not appeal either order. Priscilla later sought to set aside
the modification and the original orders, arguing the stipulation and original order were
invalid; the trial court denied that request. Priscilla now appeals the trial court’s denial
order. She again argues the original order was invalid. We affirm.
FACTUAL AND LEGAL BACKGROUND
Considering the nature of the issues before us, we need only recite the following
facts for context and procedural history.
1
Priscilla began to date Joshua in 2019. They eventually bought a house and
moved in together. After an event in early January 2023, the relationship rapidly
deteriorated. They each sought a DVRO against each other and temporary orders were
issued pending a hearing.
On November 21, 2024, the day set for trial on the mutual DVRO petitions,
Priscilla was represented by counsel and Joshua represented himself. Testimony
regarding Priscilla’s petition was taken in parts; Priscilla’s testimony was interrupted by a
third party witness, who also testified.1 After Joshua testified but before he could be
cross-examined, the court called a recess, and the parties returned with a stipulation
drafted by Priscilla’s attorney. Pursuant to the stipulation and as relevant here, the parties
each agreed to: dismiss their own existing restraining order and petition against the other
party with prejudice (paragraphs Nos. 1 & 2), sell their jointly owned home and divide
the proceeds in a particular manner (paragraphs Nos. 3 & 4), pay their own attorney fees
in the DVRO and property partition actions (paragraph No. 6), and have no contact with
one another or the other’s employer (paragraphs Nos. 7 & 8). After confirming the
parties entered into their agreement knowingly and voluntarily, the court signed the
stipulation, entered it as an order, and terminated both parties’ existing restraining orders
(November order).
I
Priscilla’s First Motion to Set Aside
Almost a week later, on November 27, 2024, Priscilla moved to set aside portions
of the stipulation and November order based on Code of Civil Procedure section 473,
subdivision (b) and Family Code section 2122. She contended she was under significant
1 We previously denied Priscilla’s untimely request to augment the record with
transcripts and thus there is no reporter’s transcript for the instant case. However,
because we resolve the appeal on procedural grounds, the transcript is unnecessary to our
determination of the issues in this case.
2
stress, her posttraumatic stress disorder severely impaired her ability to fully process the
implications of the stipulation, and she did not fully understand it. The motion
specifically and exclusively requested that paragraphs Nos. 3 and 4 — the portions of the
stipulation concerning the jointly owned home — be deleted in their entirety and that
paragraph No. 6 be replaced with an agreement to each bear their own attorney fees in
only the DVRO actions. In support of these requests, Priscilla attached to the motion
pleadings from a separate partition action that had been filed in the superior court.
Priscilla did not request any change to paragraph No. 1 or 2, in which each party agreed
to dismiss their respective DVROs with prejudice; nor did she request any change to
paragraph No. 7 or 8, which prohibited the parties from contacting or harassing one
another.
A hearing on the motion was held on January 22, 2025. The court found that the
property was subject to an on-going civil partition action that preceded the stipulation and
order and that Priscilla was prejudiced by not having consulted with her partition counsel
before entering into the stipulation. The court set aside the portions of the order
regarding partition and the parties’ real property. Consistent with Priscilla’s request, the
court deleted paragraphs Nos. 3 and 4 and modified paragraph No. 6 regarding attorney
fees but explicitly stated that all other terms of the November order “will continue as
current orders of the Court” (January amended order).
II
Priscilla’s Second Motion to Set Aside
On July 21, 2025, Priscilla, acting in propria persona, filed a motion to set aside
and dissolve the entire January amended order and remaining provisions of the November
order pursuant to Code of Civil Procedure section 473, subdivision (b) based on
“mistake, inadvertence, surprise [and] excusable neglect” and Family Code section 2122
based on duress, mental incapacity, fraud, perjury, the respondent’s failure to comply
with mandatory disclosure requirements and mistake of law and fact (July motion).
3
Specifically, she claimed that: the original stipulation was procured through duress and
mental incapacity; she only ever acted in self-defense against Joshua; her attorney was
ineffective; and Joshua had committed perjury and failed to provide financial disclosures
under Family Code section 2100 et. seq. She further asserted the trial court misapplied
the law regarding DVRO proceedings and denied her due process by entering mutual
dismissals of the DVROs without making factual findings. Priscilla contended that
existing case law, “confirm[s] this Court’s equitable power to vacate orders obtained
through duress, fraud, or procedural error.”
Joshua opposed the motion, arguing in part that the motion was untimely under
Code of Civil Procedure section 473, subdivision (b) as it was filed more than six months
after the November order and was not filed within a reasonable time of the January
amended order.
After a hearing in September 2025, the court denied the motion. The court found
that Priscilla actually sought to set aside the parties’ original stipulation, “as reflected in
the Court’s Findings and Order After Hearing on 11/22/24.” The court denied the request
to set aside the order under Code of Civil Procedure section 473, subdivision (b) as
untimely. The court also found that Family Code section 2122 did not apply because that
statutory scheme was “meant to address issues of property division and support” and
“relief from judgment under these provisions are for proceedings related to dissolution,
nullity or legal separation filings” which were not issues in this case.
Priscilla filed a timely notice of appeal.
Priscilla also filed a request for this court to take judicial notice of a fee arbitration
findings and award, dated September 29, 2025, in a separate matter between Priscilla and
her trial attorney. Priscilla claims we may do so because such awards may be converted
to judgments of the superior court and thus it constitutes a record of proceeding subject to
judicial notice pursuant to Evidence Code section 452, subdivision (d). She also
contends judicial notice is appropriate because the award contains “facts and propositions
4
that are not reasonably subject to dispute and are capable of immediate and accurate
determination” as appropriate under Evidence Code section 452, subdivision (h). We
reserved the ruling on the request.
We now deny the request to take judicial notice of this document for several
reasons. First, a party to an arbitration may petition the court to confirm, correct or
vacate the award (Code Civ. Proc., § 1285) but there is no indication that was done here.
Thus, it remains subject to challenge or confirmation and is not yet a court record;
Evidence Code section 452, subdivision (d) does not apply. Next, we have the discretion
to take judicial notice of the existence of the award, not of the truth of its contents, which
is what Priscilla seeks. (See Sandoval v. Pali Institute, Inc. (2025) 113 Cal.App.5th 616,
627, fn. 2.) Indeed, almost by definition, arbitration awards are not “[f]acts and
propositions that are not reasonably subject to dispute and are capable of immediate and
accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid.
Code, § 452, subd. (h).) Finally, to the extent Priscilla contends the award supplies
evidence of her claims, there is no showing that this award was filed, lodged with, or
presented to the trial court in the present action or at any other time. Absent exceptional
circumstances, a reviewing court will generally not take judicial notice of evidence not
presented to the trial court, and no exceptional circumstances are shown here. (Haworth
v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2.)
DISCUSSION
Priscilla contends the trial court erred in denying her motion to set aside the
November 2024 stipulation because it was a product of judicial pressure to settle the
matter without a hearing and was entered into while she was experiencing acute trauma
symptoms. She claims that the fact the stipulation attempted to resolve the property issue
without authority demonstrates its involuntary and coercive nature. She further claims
that the court’s conduct during the November 2024 hearing demonstrated a preference for
resolution over adjudication. She challenges the way the November hearing was
5
conducted and contends that the court: failed to protect her as an abuse survivor by
allowing Joshua to interrupt and personally cross-examine her in an argumentative
manner; improperly questioned her itself; denied her the ability to cross-examine Joshua;
failed to apply the correct evidentiary and procedural standards under the Domestic
Violence Prevention Act (DVPA) (Fam. Code, § 6200 et seq.); and failed to recognize a
continuing pattern of coercive control and instead focused on isolated incidents that
minimized Joshua’s abuse. She further contends that cumulative error by the trial court
requires reversal as the failure to hold a fair hearing resulted in a miscarriage of justice.
It is clear that Priscilla’s goal is to vacate both the November order and the January
amended order and to litigate the DVRO claims anew. It is equally clear, for several
reasons, that she may not do so.
As we apply the relevant law, we note that it is a “fundamental principle of
appellate procedure that a trial court judgment is ordinarily presumed to be correct and
the burden is on an appellant to demonstrate, on the basis of the record presented to the
appellate court, that the trial court committed an error that justifies reversal of the
judgment. [Citations.] ‘This is not only a general principle of appellate practice but an
ingredient of the constitutional doctrine of reversible error.’ ” (Jameson v. Desta (2018)
5 Cal.5th 594, 608-609.) Relatedly, we note that to overcome the presumption of
correctness, “an appellant is required to not only cite to valid legal authority, but also
explain how it applies in his [or her] case.” (Hodjat v. State Farm Mutual Automobile
Ins. Co. (2012) 211 Cal.App.4th 1, 10.) “When legal argument with citation to authority
is not furnished on a particular point, we may treat the point as forfeited and pass it
without consideration.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.)
I
Appellate Review of the November Proceedings and Orders
We are compelled to note that Priscilla’s litigation strategy has severely limited
our ability to review the issues she raises. As noted, Priscilla contends judicial error
6
during trial warrants setting aside the stipulation that occurred midtrial. These
contentions are not cognizable in this appeal. To preserve them for review, Priscilla had
to object during the trial. “As a general rule, a claim of error will be deemed to have
been forfeited when a party fails to bring the error to the trial court’s attention by timely
motion or objection.” (Avalos v. Perez (2011) 196 Cal.App.4th 773, 776.) There is no
indication that she did so.
Further, if Priscilla believed the trial court erred in entering the stipulation and
November order, it was incumbent on her to timely appeal. “ ‘[T]he timely filing of an
appropriate notice of appeal or its legal equivalent is an absolute prerequisite to the
exercise of appellate jurisdiction.’ ” (K.J. v. Los Angeles Unified School Dist. (2020)
8 Cal.5th 875, 881.) We can review an appealable order only if a party timely appeals the
order. She did not do so. Nor did she appeal the January amended order. Thus, even if
the January amended order was the operative order for purposes of appellate review, as
Priscilla implies, she failed to pursue that remedy. (See In re Marriage of Eben-King &
King (2000) 80 Cal.App.4th 92, 109 [“The outside time limit for filing a notice of appeal
remains 180 days after entry of judgment in all cases; authorized extensions of the filing
period will not stretch the appeal deadline beyond this limit” (italics omitted)]; see also
Cal. Rules of Court, rule 8.104(a)(1) [setting forth time limits in which to file a notice of
appeal].) Because she did not timely appeal either order, she is precluded from obtaining
any appellate review of those orders. “ ‘A party who fails to take a timely appeal from a
decision or order from which an appeal might previously have been taken cannot obtain
review of it on appeal from a subsequent judgment or order.’ ” (Dakota Payphone, LLC
v. Alcaraz (2011) 192 Cal.App.4th 493, 509; see also Norman I. Krug Real Estate
Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46 [“ ‘If a judgment or order is
appealable, an aggrieved party must file a timely appeal or forever lose the opportunity to
obtain appellate review’ ”].)
7
II
Motion to Set Aside
Instead, Priscilla chose to challenge the orders in the trial court by filing a motion
to set aside the judgment pursuant to Code of Civil Procedure section 473 and Family
Code section 2122. (See In re Marriage of Guardino (1979) 95 Cal.App.3d 77, 86-87
[discussing a motion to set aside as one way to attack a judgment].) As we explain, we
find no abuse of discretion in the trial court’s denial of Priscilla’s motion to set aside the
prior orders. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 [the denial of relief
under Code Civ. Proc., § 473, subd. (b) is reviewed for abuse of discretion].)
A. Family Code section 2122
At the outset, we agree with the trial court that Family Code section 2122 does not
apply here. The Family Code allows the trial court to set aside orders under certain
circumstances. “[Family Code s]ection 2122 sets out 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.) The provision enumerates six
grounds to set aside a judgment, or portion thereof, including actual fraud, perjury,
duress, mental incapacity, mistake, and the failure to fully disclose the value of assets
under Family Code section 2100 et seq. (Fam. Code, § 2122, subds. (a)-(f).) Subdivision
(e) states that “[a]s to stipulated or uncontested judgments or that part of a judgment
stipulated to by the parties,” a set aside motion may be based on “mistake, either mutual
or unilateral, whether mistake of law or mistake of fact.”
But Family Code section 2120 through section 2122 are general provisions within
the division governing “Nullity, Dissolution and Legal Separation.” Family Code section
2120 sets forth California’s “strong policy of ensuring the division of community and
quasi-community property in the dissolution of a marriage.” (Fam. Code, § 2120, subd.
(a), italics added.) Family Code section 2121, subdivision (a) provides that “[i]n
proceedings for dissolution of marriage, for nullity of marriage, or for legal separation,”
8
the trial court may grant relief “from a judgment … adjudicating support or division of
property.” (Italics added.) Although the parties in this case had property to be divided,
they were never married. Nor is there any indication that they were registered domestic
partners.2 Thus, there was no formal union to dissolve and the provisions providing relief
from judgment pursuant to Family Code sections 2121 and 2122 do not apply to this case.
Priscilla’s cited authority supports our conclusion. (See, e.g., In re Marriage of
Kieturakis (2006) 138 Cal.App.4th 56, 88 [discussing the applicability of Fam. Code,
§ 2122 to marital dissolution judgments].) And because these statutory provisions do not
apply, the trial court had no obligation to make findings under them. (See Carpenter v.
Pacific Mut. Life Ins. Co. (1937) 10 Cal.2d 307, 327-328 [“Findings are required and
necessary only where a statute so provides”]; Laabs v. City of Victorville (2008)
163 Cal.App.4th 1242, 1272 [“the general rule [is] that findings of fact are not required in
connection with law and motion matters”].)
B. Code of Civil Procedure Section 473
Code of Civil Procedure section 4733 governs motions to set aside “a judgment,
dismissal, order, or proceeding was taken.” (§ 473, subd. (b).) A motion for relief under
section 473, subdivision (b), must be filed “within a reasonable time, in no case
exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”
(§ 473, subd. (b).) Subdivision (b) contains both mandatory and discretionary provisions
for relief. (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432,
2 The California Domestic Partner Rights and Responsibilities Act of 2003 (Stats.
2003, ch. 421) extends to registered domestic partners almost all of the rights, benefits,
protections, and obligations that apply to spouses under California law both during and
upon termination of the union and makes marriage dissolution, nullity, and legal
separation procedures applicable to domestic partnerships. (See Fam. Code, §§ 297,
297.5, 299, subd. (d).)
3 Undesignated statutory references are to the Code of Civil Procedure.
9
438.) As relevant here,4 the permissive provision of the statute provides that the court
“may … relieve a party or the party’s legal representative” from a variety of orders,
including a “judgment, dismissal, order, or other proceeding taken against the party
through the party’s mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd.
(b).) This provision is generally understood to apply broadly to parties seeking to obtain
relief from judgments, dismissals, or stipulations for dismissal. (See Zamora v. Clayborn
Contracting Group, Inc. (2002) 28 Cal.4th 249, 254-256, 255 [“California courts have
consistently held that parties may obtain relief from judgments, dismissals, or stipulations
voluntarily entered into pursuant to a voluntary agreement through the discretionary relief
provision of section 473”].)
We agree with the trial court that Priscilla’s July motion to set aside the January
amended order is actually an attempt to set aside the November stipulation and order.
“ ‘The nature of a motion is determined by the nature of the relief sought, not by the label
attached to it. The law is not a mere game of words.’ ” (Sole Energy Co. v.
Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193.) Here, the nature of the relief
Priscilla seeks is to set aside her agreement to dismiss the DVRO petitions and to
reinstate litigation on them, which was set in motion through the November order. The
January amended order only deleted provisions from the November order and specifically
provided that all other terms of the stipulations published in November “will continue as
current orders of the Court.” Hence, the only way Priscilla could obtain the relief she
seeks is if the November order is vacated. More than seven months elapsed between the
entry of the November order and the July motion, and relief cannot be granted under
section 473 if the motion is made more than six months after the date of entry of the
order. (See Thompson v. Cook (1942) 20 Cal.2d 564, 569 [“It is well settled in this state
4 Priscilla does not contend she is entitled to relief under the mandatory provision of
section 473, subdivision (b).
10
that a court has no power to set aside on motion a judgment or order not void on its face
unless the motion is made within a reasonable time, and it has been definitely determined
that such time will not extend beyond the limited time fixed by section 473 of the Code
of Civil Procedure as at present in force”]; cf. also Kramer v. Traditional Escrow, Inc.
(2020) 56 Cal.App.5th 13, 39 [“The six-month period for granting relief under section
473, subdivision (b), ‘runs from entry of default, not entry of judgment’ ”].) Priscilla’s
second motion was made too late to apply to the November order, and the trial court did
not err in denying it as untimely without considering the merits. (See Thompson v.
Vallembois (1963) 216 Cal.App.2d 21, 24 [“The motion was made [three months] too
late, and the trial court simply lacked jurisdiction to act under it”].)
Priscilla attempts to persuade us otherwise by contending that the January
amended order became the operative judgment for purposes of postjudgment relief;
because the January amended order left intact the provisions dismissing the DVRO
petitions from the November order, her timely motion to set aside the January amended
order requires review of the provisions in the November order. We disagree. Priscilla’s
interpretation is not consistent with the express language of section 473 that requires a
motion to be filed within six months of the challenged order. Neither of the cases
Priscilla cites in support of her position are helpful and/or involve the circumstances here.
In Dakota Payphone, LLC v. Alcaraz, the appellate court dismissed an appeal as
untimely stating, “[t]he resolution of this issue turns on the question whether the amended
judgment superseded the original judgment for purposes of computing the time in which
to file a notice of appeal.” (Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th
493, 504, italics added.) Similarly, in Lister v. Bowen, the appellate court concluded that
the trial court’s reduction of the length of the renewed restraining order was a material or
substantial modification of the prior order and thus superseded the prior order such that it
“reset” the time to appeal. (Lister v. Bowen (2013) 215 Cal.App.4th 319, 330-331.) In
contrast, we are confronted with Priscilla’s failure to move to set aside the original order
11
within six months of its entry. The six-month time limit for granting relief under section
473 is jurisdictional and relief cannot be granted under section 473 if the application for
such relief is instituted more than six months after the entry of the judgment, order, or
proceeding from which relief is sought. (See Weitz v. Yankosky (1966) 63 Cal.2d 849,
855; Thompson v. Vallembois, supra, 216 Cal.App.2d at p. 24.)
Even if we were to consider the July motion as timely with respect to the issues
generated by the November order and left intact by the January amended order, Priscilla
has forfeited any argument that she is entitled to relief pursuant to section 473,
subdivision (b) because she fails to present a developed argument on appeal that the
“judgment, dismissal, order, or other proceeding” taken against her was due to her
“mistake, inadvertence, surprise, or excusable neglect.” And even if we were to consider
the merits of her claims of trial error, they do not explain her “mistake, inadvertence,
surprise, or excusable neglect.” Indeed, we find no reference to “inadvertence” or
“surprise” in her opening brief, and she mentions “mistake” and “excusable neglect” only
in passing while referencing the contents of prior motions. (See, e.g., Tiernan v. Trustees
of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not raised on
appeal deemed forfeited or waived]; Rufini v. CitiMortgage, Inc. (2014) 227 Cal.App.4th
299, 312 [“[appellant] has abandoned any claim of error regarding that cause of action by
failing to assert it in his briefs on appeal, so we will not address it”]; Paulus v. Bob Lynch
Ford, Inc. (2006) 139 Cal.App.4th 659, 685 [“[c]ourts will ordinarily treat the appellant’s
failure to raise an issue in his or her opening brief as a waiver of that challenge”].)
Further, although Priscilla is appealing the denial of her motion to set aside the
judgment — which is an appealable order — this does not create a path by which she
may obtain review of previous orders; a court will not review issues that were addressed
or could have been addressed in an earlier appeal. (See Malatka v. Helm (2010)
188 Cal.App.4th 1074, 1082 (Malatka) [“It is established that an order denying a motion
to vacate a judgment is deemed appealable only to the extent it raises new issues
12
unavailable on appeal from the judgment”].) “This restriction is imposed to prevent both
circumvention of time limits for appealing and duplicative appeals from essentially the
same ruling.” (Ibid.) To implement this policy, the general rule is that “on an appeal
from an appealable ruling, an appellate court will not review earlier appealable rulings.”
(Ibid.)
In Malatka, the appellate court applied the general rule in the context of an appeal
from an amended restraining order that also implicitly denied the defendant’s motion to
dissolve the original restraining order. (Malatka, supra, 188 Cal.App.4th at p. 1076.)
Although the court concluded the amended restraining order was an appealable order, it
also concluded, “to the extent the current appeal from [the amended] restraining order
presents issues that could have been raised in an appeal from the original restraining
order, those issues are not reviewable in this appeal.” (Id. at p. 1084; see also Chico
Feminist Women’s Health Center v. Scully (1989) 208 Cal.App.3d 230, 252 (Scully)
[applying the general rule in the context of an appeal from a modified preliminary
injunction].)
Similarly, in Scully, the plaintiff obtained a preliminary injunction, which was
modified two months later. (Scully, supra, 208 Cal.App.3d at pp. 237-239.) The
defendants appealed from that modified order but argued that portions of the original
preliminary injunction were constitutionally overbroad and vague. (Id. at p. 251.) The
appellate court noted that the original preliminary injunction was an appealable order and
the court could “perceive no reason why defendants should be able to use the order …
amending the injunction, as an artificial springboard from which to launch an appeal that
could have been taken earlier.” (Ibid.) The appellate court noted that the amended order
made no change in the earlier preliminary injunction and those provisions remained “ ‘in
full force and effect.’ ” (Id. at p. 252.) The court concluded that the general rule
controlled, and it refused to consider the legality of the original order. The court stated,
“To allow defendants to challenge the subject paragraphs of the earlier preliminary
13
injunction would allow them two appeals on identical grounds. Moreover, if defendants’
theory were allowed, it would theoretically allow wholesale challenges to a preliminary
injunction many years after its entry.” (Ibid.)
As in Malatka and Scully, Priscilla’s challenges to the way the DVRO proceedings
unfolded and to the entry of the November order and January amended order that could
have been raised in an appeal, are not reviewable here. (Malatka, supra, 188 Cal.App.4th
at p. 1084.)
C. Void Judgment
“Where, as here, a motion to vacate is made more than six months after entry of a
judgment, a trial court may grant a motion to set aside that judgment as void only if the
judgment is void on its face.” (Ramos v. Homeward Residential, Inc. (2014)
223 Cal.App.4th 1434, 1440; see § 473, subd. (d).) A judgment “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.” (Pittman v. Beck Park Apartments
Ltd. (2018) 20 Cal.App.5th 1009, 1021.) If the order can be shown to be invalid only by
considering extrinsic evidence (such as through declarations and/or testimony), it is not
void on its face. (Id. at p. 1020.) Priscilla presents no developed argument that the
orders are facially void, and we conclude that her contentions that the trial court should
have dissolved both orders because the November order was a product of coercion and
duress cannot be resolved by examining the court record and thus do not establish the
November order was void on its face. “In our view, a judgment entered pursuant to a
settlement and request for dismissal that were not authorized by the client would be
voidable, not void.” (W. Bradley Electric, Inc. v. Mitchell Engineering (2024)
100 Cal.App.5th 1, 13.) Indeed, she seems to ultimately acknowledge that coercion and
distress might render the orders voidable. Her additional argument, that the trial court
acted in excess of jurisdiction under the DVPA, might also render the orders voidable but
not void. (See Schrage v. Schrage (2021) 69 Cal.App.5th 126, 138 [“ ‘When a court has
14
fundamental jurisdiction, but acts in excess of its jurisdiction, its act or judgment is
merely voidable’ ”].) Priscilla has not shown the contested orders should be set aside
because they are void.
D. Equitable Relief
A judgment valid on the face of the record may be set aside in an independent
equitable action without time limit. “Extrinsic evidence, i.e., evidence outside the
judgment roll, may be presented on direct attack of a judgment that is valid on the face of
the record to rebut the presumption that the judgment is valid.” (OC Interior Services,
LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1328.)
Priscilla contends that even if she were required to file a motion to set aside the
November order within six months of its entry, courts retain inherent equitable authority
to vacate the orders. It is true that “even where relief is no longer available under
statutory provisions, a trial court generally retains the inherent power to vacate a default
judgment or order on equitable grounds where a party establishes that the judgment or
order … [citation] … resulted from extrinsic fraud or mistake.” (County of San Diego v.
Gorham (2010) 186 Cal.App.4th 1215, 1228.) But a court may exercise its inherent
equitable power only if the moving party makes a minimum showing of entitlement.
(See, e.g., Rappleyea v. Campbell, supra, 8 Cal.4th at p. 982 [discussing the requirement
that a party seeking relief under the court’s equitable powers must satisfy the elements of
a “stringent three-pronged test”]; Pittman v. Beck Park Apartments Ltd., supra,
20 Cal.App.5th at p. 1025 [“ ‘the party seeking equitable relief on the grounds of
extrinsic fraud or mistake must show three elements: (1) a meritorious defense; (2) a
satisfactory excuse for not presenting a defense in the first place; and (3) diligence in
seeking to set aside the [order] once discovered’ ”]; Rodriguez v. Cho (2015)
236 Cal.App.4th 742, 752 [a moving party bears the burden of proving he or she is
entitled to equitable relief,].)
15
Our review of Priscilla’s July motion reveals multiple conclusory assertions that
she is entitled to equitable relief, but no developed argument seeking such relief on
nonstatutory equitable grounds. Indeed, the references to equitable relief are tied to
either Family Code section 2122 or Code of Civil Procedure section 473, and the motion
concludes by acknowledging it “is anchored in the statutory grounds.” This is
insufficient to raise the question of equitable relief in the trial court and, accordingly, she
is precluded from doing so now. (See Howitson v. Evans Hotels, LLC (2022)
81 Cal.App.5th 475, 489 [“It is well settled that the failure to raise an issue in the trial
court typically forfeits on appeal any claim of error based on that issue”].) Thus, we need
not consider whether Priscilla is entitled to equitable relief.
DISPOSITION
The trial court’s denial of the motion to set aside the order is affirmed. Joshua is
entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
/s/
EARL, P. J.
We concur:
/s/
BOULWARE EURIE, J.
/s/
MESIWALA, J.
16