On August 5, 2011 the California Court of Appeal in San Diego ruled that Judge
Hayes' injunction permanently forbidding me from mentioning the name of Stutz
law firm, either orally or in writing, was "exceedingly unconstitutional."
As I walked out of the Court of Appeal after oral arguments, I was approached by
Darren Chaker.
Mr. Chaker advised me to take down my website in exchange for the law firm's
agreement to not to make me pay attorney's fees.
I told Mr. Chaker that I would rather go to jail. He said, "I'm just advising you to do
this because they are so nasty."
Then Mr. Chaker went over to two members of the Plaintiff's law firm, and walked
out of the courtroom chatting with them! I do not believe that they had asked him
to approach me. I believe he hatched the plan all by himself.
I reported the chaker incident on my blog, thus apparently earning the ire of a
man who is widely known for dishonest, malicious and aggressive behavior.
Mr. Chaker apparently became even more enraged when he lost the appeal in the
Mateo case.
He makes bizarre accusations. He refuses to acknowledge that Chula Vista
Elementary School District desperately tried to get me to go back to work after I
had been viciously harassed by Robin Donlan and other teachers at Castle Park
Elementary.
I refused to go back to work without an investigation into the harassment I
suffered. The district refused to produce a report on the "investigation" it
initiated, but then dropped without explanation.
I was fired for "insubordination" because I refused to go back to work. Here are
the charges against me.
Darren Chaker fails to mention that Robin Donlan and other teachers who
harassed me were transferred out of Castle Park Elementary when the district
realized that it had made a mistake by paying huge amounts of taxpayer money to
defend teachers who had behaved unlawfully.
Castle Park Elementary was out of control, with a $20,000 PTA embezzlement by
a parent who was a close associate of Robin Donlan.
The school was almost ungovernable as 11 principals in 11 years struggled to
create a professional working climate.
Hayes' injunction permanently forbidding me from mentioning the name of Stutz
law firm, either orally or in writing, was "exceedingly unconstitutional."
As I walked out of the Court of Appeal after oral arguments, I was approached by
Darren Chaker.
Mr. Chaker advised me to take down my website in exchange for the law firm's
agreement to not to make me pay attorney's fees.
I told Mr. Chaker that I would rather go to jail. He said, "I'm just advising you to do
this because they are so nasty."
Then Mr. Chaker went over to two members of the Plaintiff's law firm, and walked
out of the courtroom chatting with them! I do not believe that they had asked him
to approach me. I believe he hatched the plan all by himself.
I reported the chaker incident on my blog, thus apparently earning the ire of a
man who is widely known for dishonest, malicious and aggressive behavior.
Mr. Chaker apparently became even more enraged when he lost the appeal in the
Mateo case.
He makes bizarre accusations. He refuses to acknowledge that Chula Vista
Elementary School District desperately tried to get me to go back to work after I
had been viciously harassed by Robin Donlan and other teachers at Castle Park
Elementary.
I refused to go back to work without an investigation into the harassment I
suffered. The district refused to produce a report on the "investigation" it
initiated, but then dropped without explanation.
I was fired for "insubordination" because I refused to go back to work. Here are
the charges against me.
Darren Chaker fails to mention that Robin Donlan and other teachers who
harassed me were transferred out of Castle Park Elementary when the district
realized that it had made a mistake by paying huge amounts of taxpayer money to
defend teachers who had behaved unlawfully.
Castle Park Elementary was out of control, with a $20,000 PTA embezzlement by
a parent who was a close associate of Robin Donlan.
The school was almost ungovernable as 11 principals in 11 years struggled to
create a professional working climate.
| San Diego Education Report |
| SDER |
San Diego
Education Report
Education Report
| SDER |
| SDER |
| SDER |
| News, information and ideas about our education system by Maura Larkins |
Why is Darren Chaker stalking and harassing Maura
Larkins--even though his supervised release from
federal prison specifically forbids this?
by Maura Larkins
Jan. 24, 2015
In San Diego, Darren Chaker, who is currently on supervised release from
federal prison for bankruptcy fraud (see FBI report in right column), is stalking
me (teacher/blogger Maura Larkins). As his rap sheet makes clear, Chaker
doesn't let honesty interfere with his efforts to achieve his goals.
Darren Chaker has been sending letters about me to people on my street.
Some of us are a little bit worried, since Mr. Chaker has a troubling law
enforcement record.
Why is this man so interested in me?
It seems clear that Darren Chaker got interested in me
because I reminded him of Wendy Mateo, the
grandmother of his child. Chaker sued Mateo for calling him a
"deadbeat dad". His suit was thrown out as a "SLAPP" by San Diego Superior
Court.
In 2011, Chaker was appealing his loss to the Court of Appeal.
At the same time, I was appealing a ruling by Judge Judith Hayes, who ordered
me never to speak or write the names of Stutz, Artiano Shinoff & Holtz law firm or
any of its attorneys.
My case was clearly very similar to the Mateo case.
Mr. Cahker sat down next to me at the Court of Appeal in July 2011 on the day
that attorney Shaun Martin presented winning arguments in my free speech
case.
I spoke to Chaker for a while, then I moved to the front row of the gallery.
My friend remained seated near Chaker. She reported to me that Mr. Chaker
became very disturbed as he listened to the oral arguments and the comments
of the judges. I suspect that Mr. Chaker was upset because it seemed likely
that the judges were going to come down on the side of free speech.
If that is what he believed, he was right.
Larkins--even though his supervised release from
federal prison specifically forbids this?
by Maura Larkins
Jan. 24, 2015
In San Diego, Darren Chaker, who is currently on supervised release from
federal prison for bankruptcy fraud (see FBI report in right column), is stalking
me (teacher/blogger Maura Larkins). As his rap sheet makes clear, Chaker
doesn't let honesty interfere with his efforts to achieve his goals.
Darren Chaker has been sending letters about me to people on my street.
Some of us are a little bit worried, since Mr. Chaker has a troubling law
enforcement record.
Why is this man so interested in me?
It seems clear that Darren Chaker got interested in me
because I reminded him of Wendy Mateo, the
grandmother of his child. Chaker sued Mateo for calling him a
"deadbeat dad". His suit was thrown out as a "SLAPP" by San Diego Superior
Court.
In 2011, Chaker was appealing his loss to the Court of Appeal.
At the same time, I was appealing a ruling by Judge Judith Hayes, who ordered
me never to speak or write the names of Stutz, Artiano Shinoff & Holtz law firm or
any of its attorneys.
My case was clearly very similar to the Mateo case.
Mr. Cahker sat down next to me at the Court of Appeal in July 2011 on the day
that attorney Shaun Martin presented winning arguments in my free speech
case.
I spoke to Chaker for a while, then I moved to the front row of the gallery.
My friend remained seated near Chaker. She reported to me that Mr. Chaker
became very disturbed as he listened to the oral arguments and the comments
of the judges. I suspect that Mr. Chaker was upset because it seemed likely
that the judges were going to come down on the side of free speech.
If that is what he believed, he was right.
ZAYA v. CHAKER D052817
NADINE ZAYA,
Plaintiff and Respondent,
v.
DARREN D. CHAKER,
Defendant and Appellant.
Court of Appeals of California, Fourth Appellate District, Division One
Not to be Published in Official Reports
McINTYRE, J.
In July 2005, the superior court issued a restraining order
against Darren D. Chaker pursuant to the Domestic Violence
Protection Act (Fam. Code, § 6200 et. seq. (the Act)), requiring
him to stay away from Nadine Zaya for a five-year period. He
appealed from that order on various grounds, contending in part
that Zaya's evidence was insufficient to support its issuance;
this court, however, rejected his arguments and affirmed the
order.
On remand, Chaker moved to dismiss the order, contending that it resulted from
intrinsic fraud, and moved for reconsideration after the dismissal motion was
denied. He now appeals these orders, contending that the superior court
improperly (1) denied him an evidentiary hearing on the motion to dismiss, (2)
failed to rule on his challenge to its jurisdiction to hear this case, and (3)
disregarded substantial evidence establishing that the restraining order resulted
from fraud. We reject Chaker's arguments, as well as Zaya's request for
sanctions, and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On June 15, 2006, Zaya filed a request for a temporary restraining order under
the Act against Chaker. (All further dates are in 2006 except as otherwise
specified.) In her request, Zaya stated under penalty of perjury that Chaker
made threatening calls to her and told her he would harm her or her family if she
testified in a pending criminal matter against him. (Zaya v. Chaker (Oct. 19,
2007, D049874) [nonpub. opn.].)
The court issued the temporary restraining order that, among other things,
prohibited Chaker from harassing, threatening or contacting Zaya and ordered
him to stay at least 100 yards away from her. The order set a July 5 hearing date
on Zaya's request that the order be extended for up to five years. After Zaya had
Chaker served, an attorney who was apparently representing Chaker in the
criminal proceeding sent a courtesy facsimile transmission to the court informing
the court that Chaker was in custody and would thus be unavailable to attend
the July 5 hearing. (Zaya v. Chaker, supra.)
At the hearing on the extension of the restraining order, the court noted that
Chaker had been served with the restraining order and that it had received a
letter from an attorney on his behalf indicating that he would not be appearing.
Zaya testified that Chaker made threats directly to her to persuade her not to
testify in the pending criminal proceeding against him. Based on the evidence
before it, the court issued an order extending the expiration date of the
restraining order until July 5, 2011. (Zaya v. Chaker, supra.)
Two days later, the attorney sent another facsimile transmission to the court,
noting that the hearing had occurred and attaching the original transmission
regarding Chaker's incarceration, but not raising any objection to the court's
order or making any request for relief. Shortly thereafter, Chaker moved to have
the court vacate the five-year restraining order, arguing in part that he was
entitled to a continuance of the hearing, that he had been unable to attend the
hearing as a result of his incarceration and that the court erred in holding the
hearing in his absence. While his motion was pending, Chaker filed a notice of
appeal from the court's July 5 order, thus eliminating the court's jurisdiction to
rule on the motion. (Zaya v. Chaker, supra., citing Copley v. Copley (1981) 126
Cal.App.3d 248, 298 & Hollister Convalescent Hosp., Inc. v. Rico (1975) 15
Cal.3d 660, 666.)
On appeal, Chaker contended that the superior court erred in not granting him a
continuance of the hearing and in issuing the order based in part on the
insufficiency of the evidence to support it. This court rejected his contentions
based on the absence of any evidence in the record that he had ever requested
that the trial court grant him a continuance of the hearing and based on the
evidence submitted by Zaya in support of her application for the restraining
order. (Zaya v. Chaker, supra.)
On remand, Chaker moved to dismiss the restraining order on the ground that it
was obtained based on intrinsic fraud. Prior to the hearing on the motion,
Chaker appeared ex parte, apparently requesting that he be permitted to
subpoena witnesses to testify at the hearing. His request was denied. At the
hearing, the court denied Chaker's motion to dismiss, concluding that he had not
met his burden to establish intrinsic fraud and, even if he had, such fraud did not
support a dismissal of the restraining order. Chaker thereafter moved for
reconsideration, to which Zaya responded by making a motion for sanctions. The
court denied both requests. Chaker appeals and Zaya requests sanctions on the
ground that the appeal is frivolous.
DISCUSSION
1. General Principles Governing Attacks on Final Judgments
The doctrine of res judicata generally ensures that a final judgment rendered in
an action has conclusive effect and will not be subject to challenge or attack
except by a motion, an appeal or the exercise of some other procedural request
for relief made in that action. (Armstrong v. Armstrong (1976) 15 Cal.3d 942,
951.) Once such a judgment is entered, the trial court has limited statutory
authority to change it within a period of time after its entry. (Rochin v. Pat
Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1237 & statutory
provisions cited therein.) After the expiration of that time, the grounds on which a
party may properly seek to attack a judgment, either by motion or by an
independent action, are generally limited to challenges that the judgment is void
on its face for lack of personal or subject matter jurisdiction, that the court
granted relief in excess of its jurisdiction or that the judgment was obtained as a
result of extrinsic fraud or mistake. (Estate of Beard (1999) 71 Cal.App.4th 753,
774-775; Armstrong v. Armstrong, supra, 15 Cal.3d at p. 950; 8 Witkin, Cal.
Procedure (4th ed. 1997) Attack on Judgment in Trial Court, §§ 222-236, pp.
726-750.)
Family Code section 6345, subdivision (a) authorizes the superior court to
modify or terminate a restraining order issued pursuant to the Act on the motion
of a party subject thereto. Chaker, however, did not seek relief under that
statutory provision; instead he sought to challenge the credibility of the evidence
offered in support of the restraining order against him, arguing that the order
should be dismissed on the basis of intrinsic fraud. The parties and the superior
court have proceeded on the assumption that the principles cited above are
applicable here despite the absence of a final judgment; we accept this
assumption, without deciding the point, in resolving this appeal.
2. Denial of an Evidentiary Hearing on the Motion to Dismiss
Chaker contends that the superior court denied his due process rights in
refusing to allow him to call witnesses at the hearing on his motion to dismiss the
restraining order. In particular, he contends that when the court denied his ex
parte request to subpoena witnesses, it did so because it knew he was entitled
to call such witnesses without the necessity of an order.
On appeal, "'[a] judgment or order of the lower court is presumed correct . . .'"
and "[a]ll intendments and presumptions are indulged to support it on matters as
to which the record is silent . . . ." (Denham v. Superior Court (1970) 2 Cal.3d
557, 564, italics in original.) "This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of reversible error.'
[Citations.]" (Ibid.) Thus, an appellant must overcome the presumption of
correctness of a court's judgment or order and is responsible for providing a
record adequate to establish that error occurred. (In re Marriage of McLaughlin
(2000) 82 Cal.App.4th 327, 337; Aguilar v. Avis Rent A Car System, Inc. (1999)
21 Cal.4th 121, 132.)
Here, the record before us does not include Chaker's ex parte papers submitted
in support of what appears to have been a request by him to subpoena
witnesses to testify at the dismissal motion hearing, nor does the ex parte minute
order set forth the basis on which the court denied his request. Moreover, the
record does not include a reporter's transcript of the ex parte hearing.
Chaker, however, points to a memorandum that he submitted to the court,
unrelated to any pending hearing and lacking any court file stamp, as support
for his contention about what happened at the ex parte hearing. Given that the
court may never have even seen this memorandum and that it certainly was
never asked to verify the memorandum's content, that document is not
competent to establish what actually happened at the hearing. Absent any
indication in the record as to what Chaker specifically requested or the basis for
the court's denial of that request, we must presume that the superior court acted
properly in making its ruling.
3. Chaker's Jurisdictional Challenge
A judgment or order is void where the issuing court lacked jurisdiction in the
"fundamental sense" (that is, the court lacked subject matter jurisdiction over the
cause and/or personal jurisdiction over a party to the dispute). (Conservatorship
of O'Connor (1996) 48 Cal.App.4th 1076, 1088 & cases cited therein; see
generally Armstrong v. Armstrong, supra, 15 Cal.3d at p. 950.) Chaker contends
that the superior court lacked jurisdiction to rule on Zaya's request for a
restraining order because, despite Zaya's declaration to the contrary, he did not
reside in the eastern judicial district of San Diego County at that time.
We cannot discern Chaker's precise argument, i.e., whether he is contending
that Zaya should have filed her application in some other branch of the San
Diego Superior Court or in the superior court in some other county in California.
Either way, however, Chaker's argument confuses the issue of whether the
superior court in this case had subject matter jurisdiction over Zaya's application
and personal jurisdiction over him, on one hand, with the issue of where the
proceeding should have occurred (i.e., one of venue), on the other.
Here, the superior court clearly had subject matter jurisdiction over Zaya's
application for a restraining order (Fam. Code, § 6300) and, as a result of
Chaker's general appearance in the action, it also had personal jurisdiction over
him. (Code Civ. Proc., § 410.50, subd. (b); Dial 800 v. Fesbinder (2004) 118
Cal.App.4th 32, 52.) By failing to seek to transfer this action in a timely fashion,
Chaker essentially consented to venue in the superior court where Zaya filed her
application (Code Civ. Proc., § 396b, subd. (a); 3 Witkin, Cal. Procedure (5th ed.
2008) Actions, § 840, pp. 1065-1066); even if he had not impliedly consented,
he cites no authority establishing that a defect relating to venue of the action
would support a reversal of the restraining order. Accordingly, there is no need
to remand the matter to the trial court to consider the jurisdictional issue.
4. Sufficiency of the Evidence to Establish Fraud
A. Request for Judicial Notice
As a preliminary matter, Chaker requests that we take judicial notice of two
transcripts of testimony by Zaya, which he contends show that Zaya's statements
in support of her application for the restraining order were perjurious. However,
this court has previously issued an order granting Chaker's request to lodge
these same transcripts in support of his appeal. Consequently, his current
request for judicial notice of these documents is moot.
B. The Merits of Chaker's Fraud Challenge
Although a court has equitable jurisdiction to set aside a judgment based on
extrinsic fraud (Olivera v. Grace (1942) 19 Cal.2d 570, 575), one who
challenges a judgment on that basis must show that by virtue of the fraud he was
"' . . . deliberately kept in ignorance of the action or proceeding, or in some other
way fraudulently prevented from presenting his claim or defense.' [Citation.]"
(Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1044.) "Fraud is intrinsic and
not a valid ground for setting aside a judgment when the party has been given
notice of the action and has had an opportunity to present his case and to
protect himself from any mistake or fraud of his adversary . . . ." (In re Marriage
of Varner (1997) 55 Cal.App.4th 128, 140, quoting In re Marriage of Stevenot
(1984) 154 Cal.App.3d 1051, 1069.) Except in limited circumstances not present
here, a party's introduction of perjured testimony or false documents or its
concealment of material evidence constitutes intrinsic rather than extrinsic fraud
and thus will not support a collateral attack on the resulting judgment or order.
(E.g., Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1532; Kachig v. Boothe
(1971) 22 Cal.App.3d 626, 634; Jorgensen v. Jorgensen (1948) 32 Cal.2d 13,
19-20.)
Here, Chaker's motion to dismiss the restraining order against him was based on
the contention that the order was obtained by "intrinsic fraud," i.e., Zaya's
introduction of allegedly perjured testimony, not that any fraud by Zaya
precluded him from appearing at the hearing on her application for a restraining
order. In accordance with the principles discussed above, however, intrinsic
fraud does not provide a basis for setting aside the order. (See also In re
Marriage of Melton (1994) 28 Cal.App.4th 931, 937-938 ["Fraud is intrinsic and
not a valid ground for setting aside a judgment when the party has been given
notice of the action and has had an opportunity to present his case and to
protect himself from any mistake or fraud of his adversary, but has unreasonably
neglected to do so"].) Accordingly, the superior court did not err in denying
Chaker's motion to dismiss the restraining order against him.
5. Zaya's Request for Monetary Sanctions
Pursuant to Code of Civil Procedure section 907 and California Rules of Court,
rule 8.276(e), Zaya asks this court to award her monetary sanctions of $4,500
(which includes $1,500 Zaya incurred in opposing Chaker's motions in the
superior court) against Chaker for pursuing a frivolous appeal. Generally, "[a]n
appeal is sanctionable as frivolous when it is prosecuted for an improper motive
to harass the respondents or delay the effect of an adverse judgment, or where
it indisputably is totally and completely without merit." (Weber v. Willard (1989)
207 Cal.App.3d 1006, 1009-1010.)
The first test for frivolousness is subjective, requiring a determination as to
whether the appeal is being prosecuted solely for an improper motive, such as to
harass the respondent or delay the effect of an adverse judgment. (In re
Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650.) The second test is
objective, requiring a determination of whether the appeal is so indisputably
without basis "that any reasonable attorney would agree it was totally devoid of
merit[.]" (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1766, 1773.)
Sanctions are to be used sparingly, only to deter the most egregious conduct,
"so as to avoid a serious chilling effect on the assertion of litigants' rights on
appeal." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) While we agree
with Zaya that Chaker's appeal lacks merit, and that certain aspects of the
appeal could well be deemed frivolous, we are unable to conclude that the
appeal as a whole is "so utterly devoid of potential merit as to justify sanctions."
(Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1112.)
DISPOSITION
The orders are affirmed. The motion for sanctions is denied. Zaya is awarded
her costs of appeal.
WE CONCUR:
BENKE, Acting P.J.
NARES, J.
NADINE ZAYA,
Plaintiff and Respondent,
v.
DARREN D. CHAKER,
Defendant and Appellant.
Court of Appeals of California, Fourth Appellate District, Division One
Not to be Published in Official Reports
McINTYRE, J.
In July 2005, the superior court issued a restraining order
against Darren D. Chaker pursuant to the Domestic Violence
Protection Act (Fam. Code, § 6200 et. seq. (the Act)), requiring
him to stay away from Nadine Zaya for a five-year period. He
appealed from that order on various grounds, contending in part
that Zaya's evidence was insufficient to support its issuance;
this court, however, rejected his arguments and affirmed the
order.
On remand, Chaker moved to dismiss the order, contending that it resulted from
intrinsic fraud, and moved for reconsideration after the dismissal motion was
denied. He now appeals these orders, contending that the superior court
improperly (1) denied him an evidentiary hearing on the motion to dismiss, (2)
failed to rule on his challenge to its jurisdiction to hear this case, and (3)
disregarded substantial evidence establishing that the restraining order resulted
from fraud. We reject Chaker's arguments, as well as Zaya's request for
sanctions, and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
On June 15, 2006, Zaya filed a request for a temporary restraining order under
the Act against Chaker. (All further dates are in 2006 except as otherwise
specified.) In her request, Zaya stated under penalty of perjury that Chaker
made threatening calls to her and told her he would harm her or her family if she
testified in a pending criminal matter against him. (Zaya v. Chaker (Oct. 19,
2007, D049874) [nonpub. opn.].)
The court issued the temporary restraining order that, among other things,
prohibited Chaker from harassing, threatening or contacting Zaya and ordered
him to stay at least 100 yards away from her. The order set a July 5 hearing date
on Zaya's request that the order be extended for up to five years. After Zaya had
Chaker served, an attorney who was apparently representing Chaker in the
criminal proceeding sent a courtesy facsimile transmission to the court informing
the court that Chaker was in custody and would thus be unavailable to attend
the July 5 hearing. (Zaya v. Chaker, supra.)
At the hearing on the extension of the restraining order, the court noted that
Chaker had been served with the restraining order and that it had received a
letter from an attorney on his behalf indicating that he would not be appearing.
Zaya testified that Chaker made threats directly to her to persuade her not to
testify in the pending criminal proceeding against him. Based on the evidence
before it, the court issued an order extending the expiration date of the
restraining order until July 5, 2011. (Zaya v. Chaker, supra.)
Two days later, the attorney sent another facsimile transmission to the court,
noting that the hearing had occurred and attaching the original transmission
regarding Chaker's incarceration, but not raising any objection to the court's
order or making any request for relief. Shortly thereafter, Chaker moved to have
the court vacate the five-year restraining order, arguing in part that he was
entitled to a continuance of the hearing, that he had been unable to attend the
hearing as a result of his incarceration and that the court erred in holding the
hearing in his absence. While his motion was pending, Chaker filed a notice of
appeal from the court's July 5 order, thus eliminating the court's jurisdiction to
rule on the motion. (Zaya v. Chaker, supra., citing Copley v. Copley (1981) 126
Cal.App.3d 248, 298 & Hollister Convalescent Hosp., Inc. v. Rico (1975) 15
Cal.3d 660, 666.)
On appeal, Chaker contended that the superior court erred in not granting him a
continuance of the hearing and in issuing the order based in part on the
insufficiency of the evidence to support it. This court rejected his contentions
based on the absence of any evidence in the record that he had ever requested
that the trial court grant him a continuance of the hearing and based on the
evidence submitted by Zaya in support of her application for the restraining
order. (Zaya v. Chaker, supra.)
On remand, Chaker moved to dismiss the restraining order on the ground that it
was obtained based on intrinsic fraud. Prior to the hearing on the motion,
Chaker appeared ex parte, apparently requesting that he be permitted to
subpoena witnesses to testify at the hearing. His request was denied. At the
hearing, the court denied Chaker's motion to dismiss, concluding that he had not
met his burden to establish intrinsic fraud and, even if he had, such fraud did not
support a dismissal of the restraining order. Chaker thereafter moved for
reconsideration, to which Zaya responded by making a motion for sanctions. The
court denied both requests. Chaker appeals and Zaya requests sanctions on the
ground that the appeal is frivolous.
DISCUSSION
1. General Principles Governing Attacks on Final Judgments
The doctrine of res judicata generally ensures that a final judgment rendered in
an action has conclusive effect and will not be subject to challenge or attack
except by a motion, an appeal or the exercise of some other procedural request
for relief made in that action. (Armstrong v. Armstrong (1976) 15 Cal.3d 942,
951.) Once such a judgment is entered, the trial court has limited statutory
authority to change it within a period of time after its entry. (Rochin v. Pat
Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1237 & statutory
provisions cited therein.) After the expiration of that time, the grounds on which a
party may properly seek to attack a judgment, either by motion or by an
independent action, are generally limited to challenges that the judgment is void
on its face for lack of personal or subject matter jurisdiction, that the court
granted relief in excess of its jurisdiction or that the judgment was obtained as a
result of extrinsic fraud or mistake. (Estate of Beard (1999) 71 Cal.App.4th 753,
774-775; Armstrong v. Armstrong, supra, 15 Cal.3d at p. 950; 8 Witkin, Cal.
Procedure (4th ed. 1997) Attack on Judgment in Trial Court, §§ 222-236, pp.
726-750.)
Family Code section 6345, subdivision (a) authorizes the superior court to
modify or terminate a restraining order issued pursuant to the Act on the motion
of a party subject thereto. Chaker, however, did not seek relief under that
statutory provision; instead he sought to challenge the credibility of the evidence
offered in support of the restraining order against him, arguing that the order
should be dismissed on the basis of intrinsic fraud. The parties and the superior
court have proceeded on the assumption that the principles cited above are
applicable here despite the absence of a final judgment; we accept this
assumption, without deciding the point, in resolving this appeal.
2. Denial of an Evidentiary Hearing on the Motion to Dismiss
Chaker contends that the superior court denied his due process rights in
refusing to allow him to call witnesses at the hearing on his motion to dismiss the
restraining order. In particular, he contends that when the court denied his ex
parte request to subpoena witnesses, it did so because it knew he was entitled
to call such witnesses without the necessity of an order.
On appeal, "'[a] judgment or order of the lower court is presumed correct . . .'"
and "[a]ll intendments and presumptions are indulged to support it on matters as
to which the record is silent . . . ." (Denham v. Superior Court (1970) 2 Cal.3d
557, 564, italics in original.) "This is not only a general principle of appellate
practice but an ingredient of the constitutional doctrine of reversible error.'
[Citations.]" (Ibid.) Thus, an appellant must overcome the presumption of
correctness of a court's judgment or order and is responsible for providing a
record adequate to establish that error occurred. (In re Marriage of McLaughlin
(2000) 82 Cal.App.4th 327, 337; Aguilar v. Avis Rent A Car System, Inc. (1999)
21 Cal.4th 121, 132.)
Here, the record before us does not include Chaker's ex parte papers submitted
in support of what appears to have been a request by him to subpoena
witnesses to testify at the dismissal motion hearing, nor does the ex parte minute
order set forth the basis on which the court denied his request. Moreover, the
record does not include a reporter's transcript of the ex parte hearing.
Chaker, however, points to a memorandum that he submitted to the court,
unrelated to any pending hearing and lacking any court file stamp, as support
for his contention about what happened at the ex parte hearing. Given that the
court may never have even seen this memorandum and that it certainly was
never asked to verify the memorandum's content, that document is not
competent to establish what actually happened at the hearing. Absent any
indication in the record as to what Chaker specifically requested or the basis for
the court's denial of that request, we must presume that the superior court acted
properly in making its ruling.
3. Chaker's Jurisdictional Challenge
A judgment or order is void where the issuing court lacked jurisdiction in the
"fundamental sense" (that is, the court lacked subject matter jurisdiction over the
cause and/or personal jurisdiction over a party to the dispute). (Conservatorship
of O'Connor (1996) 48 Cal.App.4th 1076, 1088 & cases cited therein; see
generally Armstrong v. Armstrong, supra, 15 Cal.3d at p. 950.) Chaker contends
that the superior court lacked jurisdiction to rule on Zaya's request for a
restraining order because, despite Zaya's declaration to the contrary, he did not
reside in the eastern judicial district of San Diego County at that time.
We cannot discern Chaker's precise argument, i.e., whether he is contending
that Zaya should have filed her application in some other branch of the San
Diego Superior Court or in the superior court in some other county in California.
Either way, however, Chaker's argument confuses the issue of whether the
superior court in this case had subject matter jurisdiction over Zaya's application
and personal jurisdiction over him, on one hand, with the issue of where the
proceeding should have occurred (i.e., one of venue), on the other.
Here, the superior court clearly had subject matter jurisdiction over Zaya's
application for a restraining order (Fam. Code, § 6300) and, as a result of
Chaker's general appearance in the action, it also had personal jurisdiction over
him. (Code Civ. Proc., § 410.50, subd. (b); Dial 800 v. Fesbinder (2004) 118
Cal.App.4th 32, 52.) By failing to seek to transfer this action in a timely fashion,
Chaker essentially consented to venue in the superior court where Zaya filed her
application (Code Civ. Proc., § 396b, subd. (a); 3 Witkin, Cal. Procedure (5th ed.
2008) Actions, § 840, pp. 1065-1066); even if he had not impliedly consented,
he cites no authority establishing that a defect relating to venue of the action
would support a reversal of the restraining order. Accordingly, there is no need
to remand the matter to the trial court to consider the jurisdictional issue.
4. Sufficiency of the Evidence to Establish Fraud
A. Request for Judicial Notice
As a preliminary matter, Chaker requests that we take judicial notice of two
transcripts of testimony by Zaya, which he contends show that Zaya's statements
in support of her application for the restraining order were perjurious. However,
this court has previously issued an order granting Chaker's request to lodge
these same transcripts in support of his appeal. Consequently, his current
request for judicial notice of these documents is moot.
B. The Merits of Chaker's Fraud Challenge
Although a court has equitable jurisdiction to set aside a judgment based on
extrinsic fraud (Olivera v. Grace (1942) 19 Cal.2d 570, 575), one who
challenges a judgment on that basis must show that by virtue of the fraud he was
"' . . . deliberately kept in ignorance of the action or proceeding, or in some other
way fraudulently prevented from presenting his claim or defense.' [Citation.]"
(Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1044.) "Fraud is intrinsic and
not a valid ground for setting aside a judgment when the party has been given
notice of the action and has had an opportunity to present his case and to
protect himself from any mistake or fraud of his adversary . . . ." (In re Marriage
of Varner (1997) 55 Cal.App.4th 128, 140, quoting In re Marriage of Stevenot
(1984) 154 Cal.App.3d 1051, 1069.) Except in limited circumstances not present
here, a party's introduction of perjured testimony or false documents or its
concealment of material evidence constitutes intrinsic rather than extrinsic fraud
and thus will not support a collateral attack on the resulting judgment or order.
(E.g., Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1532; Kachig v. Boothe
(1971) 22 Cal.App.3d 626, 634; Jorgensen v. Jorgensen (1948) 32 Cal.2d 13,
19-20.)
Here, Chaker's motion to dismiss the restraining order against him was based on
the contention that the order was obtained by "intrinsic fraud," i.e., Zaya's
introduction of allegedly perjured testimony, not that any fraud by Zaya
precluded him from appearing at the hearing on her application for a restraining
order. In accordance with the principles discussed above, however, intrinsic
fraud does not provide a basis for setting aside the order. (See also In re
Marriage of Melton (1994) 28 Cal.App.4th 931, 937-938 ["Fraud is intrinsic and
not a valid ground for setting aside a judgment when the party has been given
notice of the action and has had an opportunity to present his case and to
protect himself from any mistake or fraud of his adversary, but has unreasonably
neglected to do so"].) Accordingly, the superior court did not err in denying
Chaker's motion to dismiss the restraining order against him.
5. Zaya's Request for Monetary Sanctions
Pursuant to Code of Civil Procedure section 907 and California Rules of Court,
rule 8.276(e), Zaya asks this court to award her monetary sanctions of $4,500
(which includes $1,500 Zaya incurred in opposing Chaker's motions in the
superior court) against Chaker for pursuing a frivolous appeal. Generally, "[a]n
appeal is sanctionable as frivolous when it is prosecuted for an improper motive
to harass the respondents or delay the effect of an adverse judgment, or where
it indisputably is totally and completely without merit." (Weber v. Willard (1989)
207 Cal.App.3d 1006, 1009-1010.)
The first test for frivolousness is subjective, requiring a determination as to
whether the appeal is being prosecuted solely for an improper motive, such as to
harass the respondent or delay the effect of an adverse judgment. (In re
Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650.) The second test is
objective, requiring a determination of whether the appeal is so indisputably
without basis "that any reasonable attorney would agree it was totally devoid of
merit[.]" (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1766, 1773.)
Sanctions are to be used sparingly, only to deter the most egregious conduct,
"so as to avoid a serious chilling effect on the assertion of litigants' rights on
appeal." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) While we agree
with Zaya that Chaker's appeal lacks merit, and that certain aspects of the
appeal could well be deemed frivolous, we are unable to conclude that the
appeal as a whole is "so utterly devoid of potential merit as to justify sanctions."
(Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1112.)
DISPOSITION
The orders are affirmed. The motion for sanctions is denied. Zaya is awarded
her costs of appeal.
WE CONCUR:
BENKE, Acting P.J.
NARES, J.
Chaker v. Crogan
Darren Chaker filed false charges against a police officer under
penalty of perjury.
Interestingly, his case was used to overturn a law that criminalized the filing of
false charges against police officers. I agree that perjury should be treated
equally no matter who is the target of the false charges.
Darren Chaker filed false charges against a police officer under
penalty of perjury.
Interestingly, his case was used to overturn a law that criminalized the filing of
false charges against police officers. I agree that perjury should be treated
equally no matter who is the target of the false charges.
Darren Chaker story from the FBI
website:
Man Sentenced to
Federal Prison for
Bankruptcy Fraud
U.S. Attorney’s Office
Southern District of Texas
(713) 567-9000
December 17, 2013
HOUSTON—Darren David Chaker, 41, of
Beverly Hills, California, and Las Vegas,
Nevada, has been ordered to federal prison
following his conviction of bankruptcy fraud,
announced United States Attorney Kenneth
Magidson. Chaker was found guilty April 4,
2013, following a five-day bench trial
before U.S. District Judge Nancy Atlas.
Today, Judge Atlas sentenced Chaker to a term
of 15 months in prison, to be immediately
followed by a three-year-term of
supervised release. He was further ordered
to pay a $2,000 fine. As part of the sentencing,
Judge Atlas included special
conditions that he not stalk or
harass anyone and obtain mental health
counseling and anger management. In handing
down the sentence, Judge Atlas noted that the
bankruptcy system depends on the reliability of
those who petition for bankruptcy relief and
added that the case involved a defendant who
could not tell the truth to the court. She rejected
Chaker’s request for a sentence of probation,
calling this a significant crime and finding that a
sentence of custody is critical.
The evidence at trial showed that Chaker filed
bankruptcy under Chapter 13, in which a debtor
is required to propose a plan of reorganization
to pay the debtor’s creditors over time. The
debtor is required to pay at least as much as the
creditors would receive if the debtor’s assets
were liquidated on the date of the filing of the
bankruptcy petition. The process is designed to
achieve an orderly transfer of a debtor’s assets
to creditors from available assets truthfully and
accurately disclosed and to provide a “fresh
start” to honest debtors by allowing them to
obtain a discharge or release of debt incurred
prior to filing bankruptcy.
According to the evidence, Chaker filed for
bankruptcy under Chapter 13 on March 6, 2007.
Specifically, on or about March 26, 2007, during
a bankruptcy hearing before the Honorable
Jeffrey Bohm, while under oath, Chaker falsely
and fraudulently represented to the court that
the property was never leased out prior to
January 2007, when he had in fact previously
contracted with a realtor who secured at least
two rental contracts with Chaker personally.
Chaker failed to disclose income and the
existence of past and present residential leases
of a residential property facing foreclosure in
Houston to his creditor, Saxon Mortgage in the
hearing and to the court.
In order for the bankruptcy system to work for all
parties, it is imperative for the debtor to be
truthful and forthright in all aspects of the
bankruptcy process. The bankruptcy system is
based on an honor system—the debtor agrees
to provide all the necessary information
requested by the trustee and to assist the
trustee in collecting all assets of debtors and
comply with the court’s orders to obtain the relief
desired under the chapter the case was filed.
Chaker will remain in custody pending transfer
to a U.S. Bureau of Prisons facility to be
determined in the near future.
This case was investigated by the FBI, with
assistance from the United States Trustee’s
Office and is being prosecuted by Assistant
United States Attorneys Carolyn Ferko and
Sharad Khandelwal.
website:
Man Sentenced to
Federal Prison for
Bankruptcy Fraud
U.S. Attorney’s Office
Southern District of Texas
(713) 567-9000
December 17, 2013
HOUSTON—Darren David Chaker, 41, of
Beverly Hills, California, and Las Vegas,
Nevada, has been ordered to federal prison
following his conviction of bankruptcy fraud,
announced United States Attorney Kenneth
Magidson. Chaker was found guilty April 4,
2013, following a five-day bench trial
before U.S. District Judge Nancy Atlas.
Today, Judge Atlas sentenced Chaker to a term
of 15 months in prison, to be immediately
followed by a three-year-term of
supervised release. He was further ordered
to pay a $2,000 fine. As part of the sentencing,
Judge Atlas included special
conditions that he not stalk or
harass anyone and obtain mental health
counseling and anger management. In handing
down the sentence, Judge Atlas noted that the
bankruptcy system depends on the reliability of
those who petition for bankruptcy relief and
added that the case involved a defendant who
could not tell the truth to the court. She rejected
Chaker’s request for a sentence of probation,
calling this a significant crime and finding that a
sentence of custody is critical.
The evidence at trial showed that Chaker filed
bankruptcy under Chapter 13, in which a debtor
is required to propose a plan of reorganization
to pay the debtor’s creditors over time. The
debtor is required to pay at least as much as the
creditors would receive if the debtor’s assets
were liquidated on the date of the filing of the
bankruptcy petition. The process is designed to
achieve an orderly transfer of a debtor’s assets
to creditors from available assets truthfully and
accurately disclosed and to provide a “fresh
start” to honest debtors by allowing them to
obtain a discharge or release of debt incurred
prior to filing bankruptcy.
According to the evidence, Chaker filed for
bankruptcy under Chapter 13 on March 6, 2007.
Specifically, on or about March 26, 2007, during
a bankruptcy hearing before the Honorable
Jeffrey Bohm, while under oath, Chaker falsely
and fraudulently represented to the court that
the property was never leased out prior to
January 2007, when he had in fact previously
contracted with a realtor who secured at least
two rental contracts with Chaker personally.
Chaker failed to disclose income and the
existence of past and present residential leases
of a residential property facing foreclosure in
Houston to his creditor, Saxon Mortgage in the
hearing and to the court.
In order for the bankruptcy system to work for all
parties, it is imperative for the debtor to be
truthful and forthright in all aspects of the
bankruptcy process. The bankruptcy system is
based on an honor system—the debtor agrees
to provide all the necessary information
requested by the trustee and to assist the
trustee in collecting all assets of debtors and
comply with the court’s orders to obtain the relief
desired under the chapter the case was filed.
Chaker will remain in custody pending transfer
to a U.S. Bureau of Prisons facility to be
determined in the near future.
This case was investigated by the FBI, with
assistance from the United States Trustee’s
Office and is being prosecuted by Assistant
United States Attorneys Carolyn Ferko and
Sharad Khandelwal.