Metropolitan News-Enterprise


Wednesday, October 5, 2016


Page 3


Judge Erred in Deciding a Motion Under Statute That Was Not Invoked—Court of Appeal


By a MetNews Staff Writer


The Court of Appeal for this district yesterday reversed a judgment because the trial judge decided a motion under a statute other than that which the moving party invoked.

Div. Eight agreed with the appellant, Nhien H. Chau, that Los Angeles Superior Court Judge Tamara Hall erred in the handling of his motion to set aside a marital settlement agreement, and the judgment based on it, declaring that the motion was “denied pursuant to Code of Civil Procedure section 473.”

That statute authorizes relief from an order or judgment stemming from “mistake, inadvertence, surprise, or excusable neglect.”

However, Chau had made his motion pursuant to Family Code §2121 and §2122, on the ground of extrinsic fraud (in the form of his wife, wife Elsa Chau, allegedly concealing assets).

Justice Elizabeth Grimes wrote:

“Here, the trial court expressly stated that it was denying husband’s request for relief under Code of Civil Procedure section 473.  However, husband did not seek relief under this section.  Instead, husband sought relief on the basis of fraud, and Family Code sections 2121 and 2122 permit a court to set aside a judgment based on fraud.  Because the trial court failed to exercise its discretion under either Family Code section 2122 or its inherent equitable powers, both of which provide relief on the basis of fraud, we conclude that the court’s order must be reversed, and that the request for an order should be reconsidered under the bases stated in the supporting memorandum.”

Because equitable powers survive time limits for bring a motion under the Family Code, and the “parties have not briefed how the timing of the settlement, judgment, and motion may impact which standard the trial court applies in assessing fraud,” Grimes said, the trial court, on remand, “should first determine whether to consider the motion under section 2122 or under its inherent equitable powers.”

The case, which was not certified for publication, is Marriage of Chau, B265261.

S. Roger Rombro of Rombro & Associates represented Nhien H. Chau, who also acted in pro per, as did Elsa Chau.


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