Filed 3/24/15 Marriage of Vangelisti CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT In re Marriage of PAUL and HA LE VANGELISTI. H039907 (Santa Clara County Super. Ct . No. 1-09-FL151997)
PAUL VANGELISTI, Appellant,

v. HA LE VANGELISTI, Respondent. ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

BY THE COURT: It is ordered that the opinion filed herein on February 24, 20 15, be modified as
follows: On page 7, at the end of the second full paragraph ending with “around 10:00 p.m.” insert the following footnote: “The emergency screener’s report, if any, is not included in the record. Regardless, father does not explain why he failed to further investigate why the emergency screener recommended maintaining th e status quo as oppos ed to granting him sole custody. Presumably the screener wa s available for questioning by the parties and, at that time, the screener had to have been aware that what daughter said in the screening
interview was different from what she had told father as set forth in father’s supporting declaration. While father may not have known that daughter had been coerced bymother, he did know that his efforts to obtain sole custody were unsuccessful and it was incumbent on him to further explore the reas ons why or explain his failure to do so.” On page 7, in the first sent ence of the final paragraph, insert the phrase “or should have known” following the words “father knew, ” so that the first sentence now reads: “At that point in time, father knew or sh ould have known there was a discrepancy between what daughter to ld him and what she told the screener.” There is no change in judgment. The petition for rehearing is denied.

Dated: ___________________

_______ Premo, J.

Rushing, P.J. Elia, J.Filed 2/24/15 (unmodified version) NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT In re Marriage of PAUL and HA LE VANGELISTI. H039907 (Santa Clara County Super. Ct . No. 1-09-FL151997)
PAUL VANGELISTI, Appellant,

v. HA LE VANGELISTI, Respondent.

Appellant Paul Vangelisti (father) and re spondent Ha Le Vangelisti (mother) were
married in 1997 and separated in 2005. 1 They share custody of their daughter (daughter), who was born in January 2001. In February 2013, father brought a motion seeking to set aside the existing custody orders on the grou nds that those orders were obtained through extrinsic fraud, specifically that mother had coerced daughter to lie during an emergency screening in 2011. The trial court appointe d minor’s counsel to investigate father’s allegations. At a subsequent hearing, mino r’s counsel advised the trial court daughter confirmed that mother had pressured her to not be “completely candid” in the screening and, in one instance, daughter did not tell th e complete truth to the screener. Daughter
also told minor’s counsel sh e was happy with the current custody arrangements and did

1 The marriage was dissolved on December 2, 2010, with the court reserving jurisdiction over all other matters.2 not want it to change. Father asked that th e court set a full hearing and call daughter to testify. After minor’s counsel indicated it w ould not be in daughte r’s best interest to testify in front of her parents, the trial c ourt denied father’s re quest and subsequently
denied father’s motion. On appeal, father argues the trial court erred in denying his motion because he was “kept in ignorance of materi al facts and was fraudulently prevented from fully presenting his case based upon [mother]’s coercion” of their daughter. Alternatively, he argues the
trial court abused its discreti on in denying his request for a full hearing on the matter in which daughter would tes tify about mother’s coercion. We disagree with both of father’s arguments and will affirm.
I. F ACTUAL AND P ROCEDURAL B ACKGROUND Father and mother were married in November 1997 and separated in 2005. Daughter was born in 2001. Father filed a pe tition for dissolution of marriage in 2009 in which he sought joint legal and physical custody of daughter. A status-only judgment of
dissolution was entered in Dece mber 2010, with the court reserving jurisdiction over custody and all other issues. In November 2010, father moved for an order granting him full legal and physical custody of daughter, rather than joint custody. In his suppor ting declaration, father said daughter had told him that mother had taken her to a “nightclub . . . until 1:30 a.m. where people drink alcohol . . . , dance and sing karaoke.” Daughter also told father of “midnight stops at a Vietnamese restaurant in Ea st San Jose that they go to . . . eat noodle soup.” Father was concerned this put daughter at risk of “possible foul play or attacks.” He also alleged that mother was physically and emotionally abusive towards daughter, was not providing her adequa te care, nutrition or an adequate place to live. Mother’s responsive declaration denied father’s allegations and accused him of physical and emotional abuse toward her and da ughter during their ma rriage. As to the “nightclub” incident, mother stated that she and daughter were invited to a friend’s3 anniversary party at a restaurant. Other fami lies with children were present and although there was dancing and karaoke, there was no alc ohol at their table. Mother claims they
left the restaurant at “abou t 11:00 p.m.” not 1:30 a.m. The trial court ordered an emergency sc reening, which took pl ace on January 13, 2011. After interviewing daughter, father and mother, the screen er recommended the parties agree to joint legal and physical cu stody with an approximately 50/50 timeshare. Father and mother accepte d the recommendation. In December 2012, father filed a motion fo r appointment of mino r’s counsel. In a supporting declaration, father said daughter recently informed him that mother coerced her to lie during the January 2011 emerge ncy screening by telling her if she “said anything negative to the screener about her mother, the Court would take her away, and
she would not be able to see her mother.” Daughter said “she was scared and persuaded [ sic ] to follow her moth er’s advice.” Father stated that if daughter had told the truth, the
screener would not have recommended and he would not have agreed to a 50/50 timeshare. Mother opposed the request, declar ing it was “nothing more than an attempt to relitigate custody and visitation.” At the hearing on father’s motion, the trial court suggested that daughter could perhaps be referred to a “teen orientation” upon either party filing a motion to modify custody, after which daughter could speak to a mediator or, alternatively, meet with the judge to answer questions prep ared by counsel. The trial court reserved the issue of appointing minor’s counsel becaus e it was “not convinced [it] is appropriate at this time.” In February 2013, father filed a request to modify custody and set aside custody orders, pursuant to Code of Civil Procedure section 473, subdivision (b) and Family Code section 2122, subdivision (a). In his supportin g declaration, father repeated his claims that mother induced daughter to lie during the 2011 emergenc y screening. Father asked
that the trial court interview daughter, with counsel for both parties present, and that counsel be permitted to propose questions for the court to ask daughter in this interview.4 At the hearing, the trial court decide d to appoint minor’s counsel for daughter, who could “spend a lot more time than I ca n with her and can ac tually go out to the
houses.” The trial court set a review hear ing for April 18 (subsequently continued to May 9 at the request of minor’s counsel) to allow time for counsel to be appointed and meet with father, mother and daughter. At the May 9 review hearing, minor’s counsel informed the co urt that, due to the amount of time that had elapsed since the 2011 screening, daughter’s recollection of what occurred back then was “somewhat vague.” Daughter recalled the screening, but could not remember all of the things she said to th e screener or what the screener asked her. Daughter did say that, before the screeni ng, mother “express[ed] a concern that if [daughter] was completely candid, that sh e feared that she would lose custody.” Daughter said that “concerned her and th at she recalled one instance in where [ sic ] she didn’t tell the complete truth on one thing to the screener, just one item.” When asked what that was, minor’s coun sel responded, “That one thing was whether or not she had stayed up extra late with mother at a restaurant where there was a party going on. [Daughter] indicated to me that instead of te lling the screener that on that one occasion they stayed up really late, she told the screener that it just went until about 10 o’clock.” Besides that one incident, daughter did not reca ll telling the screener “anything else that was false or not completely truthful.” Minor’s counsel continued, saying she ta lked to daughter “about telling the truth,
and she understands that she needs to tell th e truth at all times.” At the time of the screening, daughter “was younger and she fe lt pressured that mom had conveyed to her about losing contact with mom, and I talked to [daughter] about how . . . that’s not her responsibility, that she needs to tell the trut h, and she understood that.” Daughter “understands the parenting plan very well, a nd she’s comfortable with it, and she doesn’t want any changes in it currently.”5 Father then requested a fu ll hearing, with daughter te stifying. When asked what daughter might testify to which was differe nt from what minor’s counsel had said, father’s counsel indicated he could only speculate, since he had never interviewed daughter.
The trial court asked minor’s counsel fo r her opinion on whether it would be in daughter’s best interest to tes tify in front of her parents. Minor’s counsel said, “based on my interviews with [dau ghter], . . . she does not want to be in the middle of her parents. . . . . I believe it would put undue emotional pre ssure on her to put her on a stand in front of her parents and have her asked questio ns and answer questions regarding that screening.”
The trial court said it was uncertain how the situation would change if daughter testified, and expressed its concerns that “ both parents are more interested in fighting
with each other and are like two pitbulls with [daughter] as th e chew toy.” The trial court was not persuaded that it was in daughter’s best interest to testify, and consequently
denied father’s motion.
II. D ISCUSSION A. Standard of review A motion to set aside a judgment for fraud or mistake is addressed to the sound
discretion of the trial court and will not be reve rsed on appeal absent a clear showing that discretion was abused. ( In re Marriage of Grissom (1994) 30 Cal. App.4th 40, 46.)
B. The trial court did not abuse its discretion in de nying father’s motion Although father’s motion wa s brought below pur suant to Code of Civil Procedure section 473, subdivision (b) and Family C ode section 2122, subdivision (a), he now argues that his motion should have been grante d under the trial court’s inherent equitable authority. He contends there was extrin sic fraud which deprived him of a fair opportunity to fully present his case.6 The California Supreme Court has instruct ed that “[u]nder cert ain circumstances a court, sitting in equity, can set aside or modify a valid final judgment.” ( Kulchar v.
Kulchar (1969) 1 Cal. 3d 467, 470 ( Kulchar ).) “A final judgment may be set aside by a
court if it has been established that extrin sic factors have prevented one party to the litigation from presenting his or her case. [C itation.] The ground s for such equitable relief are commonly stated as being extrinsic fraud or mistake. However, those terms are given a broad meaning and tend to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.” ( In re Marriage of Park (1980) 27 Cal.3d 337, 342.) In ruling upon motions to se t aside the judgment on th e ground of fraud, courts distinguish extrinsic fraud from intrinsic fraud. “ ‘Fraud is extrinsic where the defrauded party was deprived of the opport unity to present his or her cl aim or defense to the court, that is, where he or she was kept in ignoran ce or in some other manner, other than from his or her own conduct, fraudulently prev ented from fully participating in the proceeding.’ [Citation.] [¶] ‘Any fraud is intrin sic if a party has been given notice of the action and has not been prevented from participa ting therein, that is, if he or she had the opportunity to present his or her case and to protect himself or herself from any mistake or fraud of his or her adversary, but un reasonably neglected to do so.’ ” ( Home Ins. Co.
v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 26-27 ( Home Ins. Co. ).) Thus,“ ‘[w]hen a claim of fraud goes to an issue involving the merits of the prior proceeding which the moving part y should have guarded agains t at that time, or if the moving party was guilty of neg ligence in failing to prevent the fraud or mistake or in contributing thereto, . . . any fraud is intr insic fraud.’ [Citation.] Generally, . . . the concealment or suppression of material evidence is deemed intrinsic fraud.” ( Home Ins.
Co. , supra , 96 Cal.App.4th at p. 27.) Intrinsic fra ud is not a valid ground for setting aside a judgment. ( In re Marriage of Stevenot (1984) 154 Cal.App.3d 1051, 1069-1070.) “
‘The rule is that fraud internal to the ad versary proceeding, such as perjury committed7 during trial or error or mistake during the trial, is intrinsic and is not a basis for relief.’ ” ( In re Marriage of Brennan (1981) 124 Cal.App.3d 598, 604.)
“Whether the case involv es intrinsic or extrinsic fraud or mistake is not determined abstractly. ‘It is necessary to examine the facts in the light of the policy that a party who failed to assemble all his [or her] evidence at the trial should not be privileged to relitigate a case, as well as the policy permitting a party to seek relief from a judgment entered in a proceeding in whic h he [or she] was deprived of a fair opportunity fully to present his case.’ ” ( Kulchar , supra , 1 Cal.3d at p. 473.)
Father’s claim of extrinsic fraud is that he was “kept in ignorance of the material
fact that Mother had coached [daughter] to lie to the Emergency Screener.” We disagree that this is an example of extrinsic fraud. Father’s Nove mber 2010 motion to obtain full legal and physical custody was based on his learning from daug hter that mother had taken her to a party at a nightclub one evening at which alcohol was served, there was dancing
and karaoke. He also claimed in his supporting declaration th at mother kept daughter at this party until 1:30 a.m. In her declarati on, mother admitted she and daughter went to a party, but at a restaurant, rather than a nightc lub and that they left at 11:00 p.m. In her interview with the emergency screener, daughter confirmed most of the details of this event, but said that sh e and mother went home at around 10:00 p.m. At that point in time, father knew ther e was a discrepancy between what daughter
told him and what she told th e screener. He was not preven ted from fully presenting his case, and could have undertaken some further i nvestigation into the ev ent in question. He chose not to and instead agreed to a continuation of joint custody. Simply because he subsequently learned that mother had influenced daughter to not be entirely truthful with
the screener does not transform this into a case of extrinsi c fraud. The conflict between daughter’s two reports of what time she and mother left the party was apparent to everyone involved and was internal to the ad versary proceeding. There was no basis for the trial court to set aside its prior custody orders.8 C. The trial court did not abuse its discretion in declining to have a full hearing Father also argues the trial court abused its discretion in not ordering a “full and fair” hearing on his claims and improperly allowed minor’s counsel’s unsworn statements
into evidence.
The record does not show th at father objected to the statements made by minor’s counsel at the hearing on his motion. 2 In the absence of a reco rd showing objections to evidence, we cannot consider them preserved for appellate review. (Evid. Code, § 353, subd. (a).) Even if those objections were made an d thus preserved, however, father cannot establish prejudice. There was no evidence before the trial c ourt indicating how the custody arrangements would change if an evid entiary hearing, in which daughter would testify on the stand in front of her parents, were held. Based on the assessment of
minor’s counsel 3 that requiring daughter to testify wo uld not be in her best interests, the
trial court acted within its discretion in de nying father’s request for a hearing.
III. D ISPOSITION The trial court’s order is affirmed. Respondent is entitled to her costs on appeal.

2 In fact, father relies on at least some of the statements made by minor’s counsel to support his claim that daughter was coer ced to lie to the emergency screener. 3 We think it worth noting that minor’s co unsel was appointed at father’s request.Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.