Marr. of Georgiou and Leslie

Filed 7/31/13
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of BYRON GEORGIOU
and MARIA LESLIE.
D061200
BYRON GEORGIOU,

Respondent, (Super. Ct. No. D478168)

v.

MARIA LESLIE,

Appellant.

APPEAL from an order of the Superior Court of San Diego County, Lorna A.

Alksne, Judge. Affirmed.

Law Offices of Marjorie G. Fuller, Marjorie G. Fuller, Lisa R. McCall; Law

Offices of Fuller Jenkins and Erik C. Jenkins for Appellant.

Law office of Stephen E. Temko, Stephen E. Temko; Ashworth, Blanchet,

Christenson & Kalemkiarian, Sharon L. Kalemkiarian; English & Gloven and Mark M.

Gloven for Respondent.
 More than three years after entry of judgment, Maria Leslie filed an action under

Family Code section 1101,1 alleging her former husband, Byron Georgiou, breached his

fiduciary duty to her during the dissolution proceedings by not disclosing the true value

of a community asset divided in the marital settlement agreement (MSA), his prospective

referral fee in federal class action securities litigation against Enron Corporation (Enron).

The family court granted Georgiou's motion for summary adjudication, determining

section 1101 does not authorize a postjudgment action, and alternatively, the action was

untimely under the statute's three-year statute of limitations (§ 1011, subd. (d)(1)). Leslie

challenges the order, contending both rulings are incorrect.

We conclude section 1101 does not authorize Leslie's action, and thus we are not

required to address the alternative ruling. Because the prospective referral fee was not

concealed, but rather the parties litigated the issue and the judgment fully adjudicated the

asset, Leslie's recourse was an action to set aside the judgment, or a portion thereof,

within the one-year limitations period specified in the relevant portion of section 2122,

subdivision (f). Because her action was untimely, the court lacked jurisdiction over the

matter. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Leslie and Georgiou married in 1985 and separated in 2003. Georgiou filed for

dissolution that year, and a bifurcated judgment terminated the marital status in 2005.

1 Further undesignated statutory references are also to the Family Code.

2
 Georgiou is an attorney, and in 2000 he entered into an "of counsel" relationship

with Milberg Weiss Bershad Hynes & Lerach LLP (Milberg Weiss),2 which entitled him

to a referral fee of 10 percent in class action litigation in which Georgiou secured the

plaintiff and the firm was designated lead counsel.

In 2002 Milberg Weiss entered into a contingency fee agreement with the Regents

of the University of California (the Regents), which was ultimately designated the lead

plaintiff in federal class action securities litigation against Enron. On a sliding scale, the

agreement authorized attorney fees of between 8 and 10 percent of the recovery.

In February 2007 Leslie and Georgiou entered into an MSA. Before signing it,

Leslie knew of Georgiou's referral fee agreement with Milberg Weiss, that the firm had

thus far recovered approximately $7.2 billion in settlement funds, the largest recovery to

date in a class action, and the firm would be submitting a request for attorney fees in

federal district court under its fee agreement with the Regents. It is undisputed that

Georgiou did not give Leslie a copy of the fee agreement.

Leslie deposed Darren J. Robbins, a Milberg Weiss partner designated most

knowledgeable about Georgiou's relationship with the firm. Her attorney questioned

Robbins on whether the firm had a fee agreement with the Regents, but he did not ask

Robbins what percentage of fees the Regents had agreed to pay the firm, nor did he ask

for a copy of the agreement. In any event, Robbins testified the federal district court

2 In May 2004 the Milberg Weiss attorneys prosecuting the Enron action withdrew
from that firm and formed Lerach Coughlin Stoia Geller Rudman and Robbins LLP
(Lerach Coughlin). In 2007 Lerach Coughlin was renamed Coughlin Stoia Rudman &
Robbins LLP. For convenience, we use Milberg Weiss throughout this opinion.
3
must approve a fee award based on a variety of factors, and it is not bound by a fee

agreement.

Robbins also testified Georgiou was entitled to a referral fee from Milberg Weiss

in the Enron litigation, but there was a dispute as to the amount of the fee. Robbins said,

"I would not imagine any scenario under which [Georgiou] would receive less than three

percent." Robbins also said the firm hoped to obtain attorney fees substantially

exceeding the largest securities class action fee award to date of $330 million, as that

award was based on a much smaller recovery than achieved in the Enron litigation.

Robbins estimated Milberg Weiss would obtain fees by the end of 2008.

In a settlement conference brief, Leslie gleaned that Georgiou's referral fee may be

between $9 and $33 million, presumably based on a potential fee award to Milberg Weiss

of $330 million. She acknowledged, however, that the firm intended to seek "far more

than $330 million," and that Georgiou intended to "vigorously argue" he was entitled to a

full 10 percent referral fee.

The MSA divided the prospective referral fee unequally. Leslie agreed to accept

10 percent of the fee, in exchange for approximately $7 million in other assets and debt

relief. She received the family home, even though it was Georgiou's separate property,

eight townhomes that produced net monthly income, a Roth IRA and retirement accounts.

He received 90 percent of his referral fee, life insurance policies, loan receivables,

business interests, and substantial credit card and other debt. According to Georgiou,

Leslie "was taking everything that was certain."

4
 The MSA was incorporated in a judgment of dissolution entered on

December 12, 2007. About a month later, Milberg Weiss submitted its fee application to

the federal district court in the Enron case, requesting 9.52 percent of the ultimate

recovery of approximately $7.2 billion, pursuant to the terms of its fee agreement with

the Regents. In September 2008 the federal district court issued a lengthy order granting

the request as reasonable and awarding Milberg Weiss $688 million in fees.

Milberg Weiss then negotiated a 9 percent referral fee with Georgiou. In

September 2008 Georgiou paid Leslie $4 million for her 10 percent share of the fee,

which caused her to realize his fee exceeded the top range of $33 million she anticipated

when she entered into the MSA. In November 2009 she learned she was entitled to an

additional $1.560 million.3

Leslie retained a new attorney, and in November 2009 she filed a motion under

section 2122, subdivision (d), to set aside the judgment of dissolution based on her

mental incapacity. A motion under this provision must be filed within two years after the

date of entry of judgment. (Ibid.) She argued her former attorney insisted that she enter

into the MSA so he could get paid, and implied she was under duress because she had not

been taking psychotropic medications as prescribed by her physicians. In September

2010 after retaining yet another attorney, Leslie dismissed the motion.

3 Georgiou states he made payments to Leslie totaling $5,568,200 for her 10 percent
share of his net referral fee, meaning he recovered $55,682,000. She claims he must have
recovered more than that amount, since he was entitled to 9 percent of $688 million, and
he did not fully pay her 10 percent share. That issue is not germane on appeal.
5
 On December 13, 2010, however, Leslie filed this action under section 1101 for

Georgiou's breach of his fiduciary duty of disclosure. The gist of the action was that

Georgiou deceived her into believing his potential referral fee would be between $9 and

$33 million, by not providing her with a copy of the fee agreement between Milberg

Weiss and the Regents and inventing or exaggerating a dispute with the firm over the

amount of his referral fee. She argued that had she known the terms of the fee

agreement, she could have calculated that Milberg Weiss stood to obtain a $688 fee

award. Leslie sought either 50 percent or 100 percent of the referral fee pursuant to

section 1101, subdivisions (g) and (h).4

Georgiou moved for summary adjudication, arguing her action was untimely

because she did not file it within three years from the date she had "actual knowledge that

the transaction or event for which the remedy is being sought occurred." (§ 1101,

subd. (d)(1).) Leslie argued her action did not accrue until September 2008 when she

learned the amount of Georgiou's referral fee and realized he had understated his

potential fee in breach of his fiduciary duty.

The court determined, sua sponte, that relief for breach of fiduciary duty under

section 1101 "is not legally available in a post-marital dissolution judgment action." The

court interpreted section 1101 to authorize an action in only three instances: (1) during

4 Leslie also claims Georgiou failed to fully disclose potential fees from Milberg
Weiss in matters other than Enron, but we are not required to discuss those claims
separately. Our holding applies to all claims.

6
an intact marriage; (2) in conjunction with a dissolution proceeding; or (3) after the death

of a spouse.

The court also found that section 2122, subdivision (e), under which a judgment

may be set aside for mistake, provided Leslie's sole recourse, but such an action was not

viable because the statute's one-year limitations period was long expired. Alternatively,

the court determined that even if section 1101 applied, her action was barred by the

statute's three-year limitations period since she knew when she signed the MSA that she

did not have a copy of Milberg Weiss's fee agreement with the Regents.

DISCUSSION

I

Standard of Review

Leslie contends the court erred by granting summary adjudication. She asserts the

court misinterpreted section 1101 to authorize an independent action for breach of

fiduciary duty only in an intact marriage.

A defendant meets his or her burden in a summary adjudication motion "by

negating an essential element of the plaintiff's case, or by establishing a complete

defense, or by demonstrating the absence of evidence to support the plaintiff's case."

(Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1142; Code Civ. Proc., § 437c,

subd. (f)(1) [party may move for summary adjudication as to "one or more affirmative

defenses"].) "We review questions of law as well as orders granting summary

adjudication under the de novo standard of review." (Lafferty v. Wells Fargo Bank

7
(2013) 213 Cal.App.4th 545, 556.) Likewise, the interpretation of a statute presents a

legal question we review independently. (Ibid)

II

Applicable Law/Analysis

A

Fiduciary Duties During Dissolution Proceedings

Spouses have fiduciary duties to each other as to the management and control of

community property. (§§ 721, subd. (b), 1100, subd. (e).) "[I]n transactions between

themselves, a husband and wife are subject to the general rules governing fiduciary

relationships which control the actions of persons occupying confidential relations with

each other. This confidential relationship imposes a duty of the highest good faith and

fair dealing on each spouse, and neither shall take any unfair advantage of the other."

(§ 721, subd. (b).)

The fiduciary duties expressly extend throughout dissolution proceedings.

(§§ 2100, subd. (c), 2102-2107.) "From the date of separation to the date of the

distribution of the community or quasi-community asset or liability in question, each

party is subject to the standards provided in Section 721, as to all activities that affect the

assets and liabilities of the other party." (§ 2102, subd. (a).) "[A] full and accurate

disclosure of all [the parties'] assets and liabilities . . . must be made in the early stages of

a proceeding for dissolution of marriage." (§ 2100, subd. (c).) "It reasonably follows

that a spouse who is in a superior position to obtain records or information from which an

asset can be valued and can reasonably do so must acquire and disclose such information

8
to the other spouse." (In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334,

1348.)

Further, "each party has a continuing duty to immediately, fully, and accurately

update and augment that disclosure to the extent there have been any material changes."

(§ 2100, subd. (c).) The final declaration of disclosure shall include "[a]ll material facts

and information regarding the valuation of all assets that are contended to be community

property." (§ 2105, subd. (b)(2).) "The formulation of a marital settlement agreement is

not an ordinary business transaction, resulting from an arm's-length negotiation between

adversaries. Rather, it is the result of negotiations between fiduciaries required to openly

share information." (In re Marriage of Brewer & Federici, supra, 93 Cal.App.4th at

p. 1344.)

B

Postjudgment Remedies
For Breach of Fiduciary Duty

1

There are, of course, postjudgment remedies for breach of the fiduciary duty of

full disclosure during dissolution proceedings. Within the first six months after entry of

judgment, the court has discretion to set aside a judgment under Code of Civil Procedure

section 473, subdivision (b) on the grounds of "mistake, inadvertence, surprise, or

excusable neglect." (In re Marriage of Varner (1997) 55 Cal.App.4th 128, 138.)

Historically, "[c]ourts have also been held to have inherent power to set aside a judgment,

9
even after the six-month period of Code of Civil Procedure section 473 has passed, if the

parties have been deprived of the opportunity to litigate their claim." (Id. at p. 139.)

Further, "[i]n 1993, a chapter entitled Relief from Judgment was added to the

Family Code. (§§ 2120-2129, added by Stats. 1993, ch. 219, § 108, pp. 1615-1617.) . . .

In adopting this chapter, the Legislature found '[t]he law governing the circumstances

under which a judgment can be set aside, after the time for relief under Section 473 of the

Code of Civil Procedure has passed, has been the subject of considerable confusion

which has led to increased litigation and unpredictable and inconsistent decisions at the

trial and appellate levels.' (§ 2120, subd. (d).)" (Rubenstein v. Rubenstein, supra, 81

Cal.App.4th at p. 1143.)

Section 2120, subdivision (a), acknowledges that California's strong public policy

of ensuring the fair division of community property can only be implemented with full

disclosure of community property. Section 2120 also provides: "(b) It occasionally

happens that the division of property . . . , whether made as a result of agreement or trial,

is inequitable when made due to the nondisclosure or other misconduct of one of the

parties. [¶] (c) The public policy of assuring finality of judgments must be balanced

against the public interest in ensuring proper division of marital property, . . . and in

deterring misconduct." (Italics added.) Section 2120 et seq. applies to dissolution

judgments adjudicating support or division of property entered on or after January 1,

1993, and as to such judgments all prior law on "equitable" set-aside relief is preempted.

(§§ 2121, subd. (a); 2129; Hogoboom & King, Cal. Practice Guide: Family Law (The

Rutter Group 2012) ¶ 16:101, p. 16-28 (Hogoboom).)

10
 "Section 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, italics added.) "Unlike traditional equitable set-aside law

where 'laches' is the only time limit on relief . . . , [section] 2120 et seq. accommodates

the public policy interest in putting an end to litigation and ensuring the 'finality' of

family law judgments by setting absolute deadlines on obtaining a post-[judgment] set-

aside. Once the statutorily-prescribed period expires [section 2122], set-aside relief is not

available and the judgment is effectively final for all purposes." (Hogoboom, supra,

¶ 16:104, p. 16-31.)

Under section 2122, there are 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 section 2100 et seq. (§ 2122, subds. (a)-

(f).) "Upon vacating the judgment, in whole or in part, a trial court is empowered to

make an unequal distribution of the concealed assets, in the interests of justice.

(§ 2126.)" (Rubenstein v. Rubenstein, supra, 81 Cal.App.4th at p. 1146.)

Subdivision (e) of section 2122 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." Here, the family court determined Leslie's action was controlled by subdivision (e)

of section 2122, based on opinions holding that a judgment of dissolution may be set

aside under that provision for the breach of the fiduciary duty of full disclosure. (In re

Marriage of Varner, supra, 55 Cal.App.4th at pp. 143-144; In re Marriage of Brewer &

11
Federici, supra, 93 Cal.App.4th 1334, 1344.) These opinions, however, were based on a

previous iteration of section 2122. In 2001, the Legislature amended section 2122 to

specify as a ground for relief the "[f]ailure to comply with the disclosure requirements of

Chapter 9 (commencing with Section 2100)." (§ 2122, subd. (f).)

Leslie, however, waited too long to pursue relief under section 2122. An action

based on the failure to disclose "shall be brought within one year after the date on which

the complaining party either discovered, or should have discovered, the failure to

comply." (§ 2122, subd. (f).) Likewise, a set-aside action for actual fraud is subject to a

limitations period of one year from the date of actual or implied discovery. (§ 2122,

subd. (a).) Leslie discovered in September 2008 that Georgiou obtained a referral fee

substantially higher than she alleges he alluded was possible and she did not file her

action until December 2010.

2

With the applicable section 2122 limitations period expired, Leslie relied on

section 1101. Subdivision (a) of section 1101 provides: "A spouse has a claim against

the other spouse for any breach of the fiduciary duty that results in impairment to the

claimant spouse's present undivided one-half interest in the community estate, including,

but not limited to, a single transaction or a pattern or series of transactions, which

transaction or transactions have caused or will cause a detrimental impact to the claimant

spouse's undivided one-half interest in the community estate."

Section 1101, subdivision (d)(1), provides that a claim for breach of fiduciary duty

"shall be commenced within three years of the date a petitioning spouse had actual

12
knowledge that the transaction or event for which the remedy is being sought occurred."

Section 1101, subdivision (d)(2), provides that "[a]n action may be commenced under

this section upon the death of a spouse or in conjunction with an action for legal

separation, dissolution of marriage, or nullity without regard to the time limitations set

forth in paragraph (1)."5 Leslie claimed this is an independent action subject to the three-

year limitations period, rather than an action brought in conjunction with the dissolution

proceeding.

The family court determined section 1101 authorizes an independent action only

during an intact marriage. Subdivision (f) of section 1101 provides: "Any action may be

brought under this section without filing an action for dissolution of marriage, legal

separation, or nullity, or may be brought in conjunction with the action or upon the death

of a spouse." (Italics added.) While California allows interspousal actions, section 1101

does not expressly preclude postjudgment actions. As a commentator observes, "spouses

are not apt to sue each other while happily married."

(Hogoboom, supra, ¶ 8:638, p. 8-158.10.)6

5 Additionally, any action under section 1101 is subject to a laches defense.
(§ 1101, subd. (d)(3).) " ' "The defense of laches requires unreasonable delay plus either
acquiescence in the act about which plaintiff complains or prejudice to the defendant
resulting from the delay." ' " (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1418.)

6 As another commentator puts it, "While this might decrease the spouses' present
emotional happiness, it can increase their utility curve for wealth, as one spouse signals to
the other that personal finances, investment opportunities, and opportunity costs are, and
will be, closely monitored during marriage." (Carillo, The M Word: From Partial
Coverture to Skills-Based Fiduciary Duties in Marriage (2011) 22 Hastings Women's
L.J. 257, 268.)
13
 The court also noted section 1101 is part of Division 4, Part 4 of the Family Code,

entitled "Management and Control of Marital Property," and the "language throughout

Division 4 uses the terms 'spouse,' 'husband and wife' and 'married person.' " (See § 700

et seq.) In contrast, section 2122 appears in Division 6, Part 1 of the Family Code,

entitled "Nullity, Dissolution, and Legal Separation," and Division 6 "switches to the

term 'party.' " (See § 2000 et seq.) Leslie asserts labels are immaterial, because section

11 explains that in the Family Code, a "reference to 'husband' and 'wife,' 'spouses,' or

'married persons,' or a comparable term, includes persons who are lawfully married to

each other and persons who were previously lawfully married to each other, as is

appropriate under the circumstances of the particular case."

Leslie also cites In re Marriage of Rossi (2001) 90 Cal.App.4th 34 (Rossi), as

authority for the applicability of section 1101 to her action. In Rossi, judgment on a

marital settlement agreement was entered in April 1997, and in May 1999 the former

husband learned for the first time that his former wife had received lottery winnings

during the marriage. In July 1999 he filed an action against her under section 1101. The

family court determined the wife committed fraud within the meaning of Civil Code

section 3294 by concealing the winnings, and it penalized her by awarding the husband

100 percent of the winnings under section 1101, subdivision (h). (Rossi, supra, at p. 39.)

The appellate court affirmed the ruling, concluding, "This case presents precisely the

circumstance that . . . section 1101, subdivision (h) is intended to address." (Id. at p. 42.)

Relying on Rossi, Hogoboom indicates section 1101 may provide a postjudgment

remedy for breach of fiduciary duty in proper circumstances. Chapter 16, which is

14
entitled "Postjudgment Motions, Appeals & Writs," states that while section 2120 et seq.

preempts a tort remedy arising out of a dissolution proceeding, "remedies otherwise

authorized by law, are not preempted by [section] 2120 et seq. [¶] For instance, subject

to statutory time limitations, a spouse alleging intentional nondisclosure or concealment

of marital property in violation of statutory duties of disclosure may pursue alternative

remedies of a set-aside based on concealment and breach of fiduciary duty or an award of

50% or 100% of the concealed property" pursuant to section 1101, subdivisions (g)

and (h). (Hogoboom, supra, ¶ 16:103.2, pp. 16-30 to 16-31, italics added, citing

Rossi, supra, 90 Cal.App.4th at pp. 38-39.)

In Rossi, supra, 90 Cal.App.4th 34, however, there was no contention that section

1101 is inapplicable to postjudgment proceedings. "[A] case is not authority for a

proposition not therein considered." (Fait v. New Faze Development, Inc. (2012) 207

Cal.App.4th 284, 301.)

Moreover, the facts of Rossi are readily distinguishable from those here. In Rossi,

the lottery winnings were concealed and not addressed in the judgment of dissolution.

Thus, the winnings could be divided in a postjudgment action under section 1101,

pursuant to its harsh 100 percent penalty provision (§ 1101, subd. (h)), without affecting

the judgment's division of other community property. In other words, the section 1101

15
action did not violate the strong public policy of ensuring the finality of judgments within

the one-year limitations period of section 2122.7

Here, Georgiou not only disclosed his prospective referral fee in the Enron

litigation, it was a major factor during negotiations on the MSA and the subject of

discovery by Leslie's attorneys. The judgment fully adjudicated the issue, with the MSA

awarding Leslie 10 percent of the fee and Georgiou 90 percent of the fee, and dividing

the remainder of the community assets and debts to reflect the disparity.

" 'A court must, where reasonably possible, harmonize statutes, reconcile seeming

inconsistencies in them, and construe them to give force and effect to all of their

provisions. [Citations.] This rule applies although one of the statutes involved deals

generally with a subject and another relates specifically to particular aspects of the

subject.' " (Pacific Palisades Bowl Mobile Estates, LLC v. City of Los Angeles (2012) 55

Cal.4th 783, 805.) " ' "The courts are bound, if possible, to maintain the integrity of both

statutes if the two may stand together." ' " (In re Greg F. (2012) 55 Cal.4th 393, 407.)

"We . . . construe the words in context, keeping in mind the statutory purpose . . . relating

to the same subject, both internally and with each other, to the extent possible."

7 Leslie's reliance on In re Marriage of Hokanson (1998) 68 Cal.App.4th 987, is
also misplaced. Again, in Hokanson the applicability of section 1101 to a postjudgment
action was not raised or discussed. Further, the facts of Hokanson are nothing like the
facts here. In Hokanson, the judgment of dissolution imposed a duty on the former wife
to sell the family home, and the former husband later brought an action against her for
delaying the sale. (Hokanson, supra, at pp. 990-991, 994.) As in Rossi, supra, 90
Cal.App.4th 34, the section 1101 action did not require upsetting the judgment.

16
(Outfitter Properties, LLC v. Wildlife Conservation Bd. (2012) 207 Cal.App.4th 237,

244.)

Sections 2122 and 1101 pertain to the same subject matter, as they both provide

remedies for breach of the fiduciary duty of disclosure. In Leslie's view, the remedies are

interchangeable, and if a party misses the one-year deadline for an action under

subdivision (f) of section 2122, he or she may bring an action under section 1101,

subdivision (d)(1), within the three-year limitations period.

Section 2120 et seq. takes precedence, however, "when either party is seeking to

'undo' a property division judgment that adjudicated particular assets and/or liabilities.

By contrast, those statutes have no effect on proceedings to determine community

interests in assets and liabilities that were unadjudicated or omitted from the judgment."

(Hogoboom, supra, ¶ 16:160, p. 16-47; In re Marriage of Melton (1994) 28 Cal.App.4th

931, 939 ["property left unadjudicated by a divorce decree is subject to future litigation,

the parties being tenants in common in the meantime"]; see also § 2556 ["the court has

continuing jurisdiction to award community estate assets or community estate liabilities

to the parties that have not been previously adjudicated by a judgment in the

proceeding"].) "The mere mention of an asset in the judgment is not controlling.

[Citation.] '[T]he crucial question is whether the benefits were actually litigated and

divided in the previous proceeding.' " (In re Marriage of Thorne & Raccina (2012) 203

Cal.App.4th 492, 501.)

We are not required to determine the propriety of the court's finding that section

1101 never authorizes a postjudgment action for breach of fiduciary duty. Rather, we

17
conclude section 1101 does not authorize a postjudgment action in these circumstances,

because the referral fee cannot be disposed of without upsetting the judgment, or at least

a portion of it. The judgment divided Georgiou's referral fee unequally, and divided the

remainder of community assets and debts based on the disparity. Leslie cannot take the

benefits of the judgment and also obtain 50 percent or 100 percent of the referral fee

under section 1101, subdivision (g) or (h). To interpret section 1101 as Leslie urges, we

would have to ignore section 2120 et seq. and the strong public policy of assuring finality

in judgments within a reasonable time (§ 2120, subd. (b)).

The court correctly found Leslie's exclusive remedy was a set-aside action under

section 2122. Because she did not file her action within the one-year limitations period

of subdivision (f) of section 2122, the family court lacked jurisdiction over the matter and

summary adjudication was proper. (In re Marriage of Thorne & Raccina, supra, 203

Cal.App.4th at p. 500.)8

8 Given our holding, we are not required to consider legislative history materials
Georgiou submitted in support of his assertion that an independent action under section
1101 may only be brought during an intact marriage. Further, we are not required to
address the court's alternative ruling that even if section 1101 were applicable, the action
is barred by its three-year statute of limitations (§ 1101, subd. (d)(1)).
18
 DISPOSITION

The order is affirmed. Georgiou is entitled to costs on appeal.

MCCONNELL, P. J.

WE CONCUR:

BENKE, J.

O'ROURKE, J.

19