Filed 4/23/20 Armendariz v. Harbor Freight Tools U.S.A. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ETTIE ARMENDARIZ,

Plaintiff and Respondent,

v.

HARBOR FREIGHT TOOLS U.S.A., INC.,

Defendant and Respondent;

BRET LESTER,

Movant and Appellant.

D075518

(Super. Ct. No. 37-2017-00004443-
CU-OE-CTL)

APPEAL from an order of the Superior Court of San Diego County, Kenneth J. Medel, Judge. Affirmed.

Robins Kaplan, Glenn A. Danas; Christina Humphrey Law and Christina Humphrey, for Movant and Appellant.

Hill, Farrer & Burrill, Warren J. Higgins, and Patrick E. Michela, for Defendant and Respondent.

No appearance for Plaintiff and Respondent.

Plaintiff Ettie Armendariz filed the underlying action against defendant Harbor Freight Tools U.S.A., Inc. in San Diego County Superior Court (the Armendariz action). She asserted various employment-related claims, both individually and on behalf of other current and former Harbor Freight employees under the Labor Code Private Attorneys General Act (PAGA; Lab. Code, § 2698 et seq.). After a year of litigation, Armendariz and Harbor Freight reached a settlement agreement covering Armendariz’s individual and PAGA claims. The settlement agreement generally provided for $2,500 in payments to Armendariz, $7,500 in attorney fees, and $30,000 in PAGA civil penalties. In exchange, Armendariz agreed to release her individual and PAGA claims against Harbor Freight. The trial court approved the settlement and entered judgment accordingly.

Separately, Bret Lester was pursuing his own litigation against Harbor Freight in Ventura County Superior Court (the Lester action; Lester v. Harbor Freight Tools USA, Inc. (No. 56-2016-00484055-CU-OE-VTA)). Lester asserted similar individual and PAGA claims, and he additionally sought certification of a class of current and former Harbor Freight employees. After Lester became aware of the Armendariz settlement, he moved to vacate the Armendariz judgment. Lester argued that extrinsic fraud, in the form of Harbor Freight’s alleged concealment of the Armendariz action, prevented him from participating in that action and protecting his rights.

The trial court denied Lester’s motion to vacate. To the extent the motion was based on Code of Civil Procedure section 663, the court found it was untimely because it was filed more than 180 days after entry of judgment. To the extent the motion was based on the court’s equitable power, the court found Lester had not shown reasonable diligence in filing the motion. The court further found that Lester was not entitled to relief on the merits. He had not established extrinsic fraud, he had not shown that his participation would have resulted in a different judgment, and he did not have standing under PAGA to object to the settlement in any event.

Lester appeals. He contends the trial court erred by denying his equitable motion to vacate, and he challenges each of the court’s specific findings thereunder. He does not challenge the court’s denial of his statutory motion.

We conclude the trial court did not abuse its discretion by denying Lester’s motion on the ground that he did not show reasonable diligence in filing the motion. Lester waited over five months after receiving the Armendariz settlement and release, and over four months after his counsel acknowledged in writing that the settlement “completely wipes out” Lester’s PAGA claims, to file the motion. The trial court could reasonably find that this delay was unexplained and unreasonable. We therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Consistent with our standard of review, we state the facts in the light most favorable to the court’s order. (See Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1283 (Gamet); Villarruel v. Arreola (1977) 66 Cal.App.3d 309, 311; see also Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 532, fn. 1.)

Lester filed his lawsuit against Harbor Freight in July 2016. His complaint asserted various employment-related claims on behalf of himself and a putative class of current and former Harbor Freight assistant managers. After providing notice of his lawsuit to the California Labor and Workforce Development Agency (LWDA), Lester amended his complaint to allege representative claims under PAGA.

Seven months later, Armendariz filed her own lawsuit against Harbor Freight. She alleged similar employment-related claims, both individually and as a PAGA representative. In that litigation, Harbor Freight filed a Case Management Statement. Although the Lester action remained pending, Harbor Freight did not identify it as a related case under the California Rules of Court, rule 3.300.

After Armendariz and Harbor Freight agreed to settle the lawsuit, they moved the court for approval. Under the terms of the settlement, Harbor Freight would pay a total of $40,000, to be distributed as follows: $500 to Armendariz to settle her individual claims, $2,000 to Armendariz as an “enhancement payment” for bringing the PAGA claims, $7,500 to Armendariz’s attorney as attorney fees, and $30,000 in PAGA civil penalties. The LWDA would receive 75 percent of the civil penalties ($22,500), and the remaining 25 percent ($7,500) would be paid to the current and former employees represented by Armendariz in the lawsuit. In exchange, Armendariz agreed to release her individual and PAGA claims against Harbor Freight. The release did not cover any other employee’s individual claims against Harbor Freight. The parties provided the court with, among other things, the settlement agreement and general release signed by Armendariz and Harbor Freight. Armendariz provided notice of the settlement to the LWDA.

After reviewing the motion to approve the settlement, the trial court requested more specificity regarding the settlement. In response, Armendariz submitted a declaration by her counsel describing her claims and justifying the terms of the settlement. Armendariz’s counsel stated he had practiced employment law for over 25 years and been attorney of record in over 75 PAGA matters. He explained that Harbor Freight had informally provided him with “information and documents directly relevant to the evaluation of [Armendariz’s] individual and representative claims, including time records, wage statements, and company policies.” He reported that he had personally reviewed the information provided by Harbor Freight, conducted legal research into Armendariz’s claims, and made an informed and intelligent assessment regarding their merit. He concluded that Armendariz’s individual meal and rest break claims had little value, and her remaining claims likely had no merit at all. Based primarily on meal and rest break violations, he believed that the maximum possible recovery for represented employees under PAGA would be approximately $300,000 to $600,000. In light of the substantial legal defenses available to Harbor Freight, and the possibility that Harbor Freight would move to compel arbitration of Armendariz’s individual claims and stay her PAGA claims, Armendariz’s counsel believed the $40,000 settlement to be fair and reasonable. He stated that he had spent a total of 40 hours representing Armendariz in the lawsuit.

After receiving this declaration, the trial court approved the settlement in March 2018. A month later, it entered a final judgment reflecting the terms of the settlement.

Meanwhile, in the Lester action, the Ventura trial court did in fact order Lester’s individual claims to arbitration and stayed the remainder of his lawsuit. In May 2018, an arbitration administrator provided disclosures to Lester, which identified the now-settled Armendariz action. Lester’s counsel had been aware of a different pending employment action against Harbor Freight (the Blanco action; Blanco v. Harbor Freight Tools, U.S.A., Inc. (Super. Ct. L.A. County, No. BC603939)), but she was not aware of Armendariz.

Three weeks after receiving the disclosures, Lester’s counsel emailed Harbor Freight’s counsel. (The same counsel represented Harbor Freight in the Armendariz, Lester, and Blanco actions.) She wrote, “Looking at these arbitration disclosures, it looks like there are at least 3 other cases against Harbor Freight. Are any of these ‘related cases’ pursuant to California Rules of Court 3.300? [¶] I am aware of [the Blanco action], are there others with overlapping claims in the class or PAGA context? If so, can you please send over [the] complaints?” The next day, Harbor Freight’s counsel responded, “There are no cases that fall within the scope of CRC 3.300.” He noted the Blanco and Armendariz actions, however, and attached the relevant complaints. Harbor Freight’s counsel told Lester’s counsel that Armendariz had settled.

Lester’s counsel replied and stated, “The PAGA case [i.e., Armendariz] does appear to overlap with our case. . . . [¶] If you think that it does not, please explain why.” Lester’s counsel also requested information about the settlement and any papers that were filed to approve the settlement. The next day, Harbor Freight’s counsel provided the motion to approve the settlement in Armendariz and supporting documents, but he did not otherwise respond to Lester’s counsel’s queries.

A month later, Lester’s counsel spoke with Harbor Freight’s counsel in advance of an arbitration conference in the Lester action. Lester’s counsel remarked, ” ‘[S]o I guess the PAGA settlement is wiping out my case?’ ” According to Harbor Freight’s counsel, he responded that the Armendariz settlement would bar any PAGA civil penalties but not Lester’s individual claims. Lester’s counsel responded, ” ‘I can’t let that slide,’ ” and stated she would be filing a motion of some kind.

Later the same day, after the arbitration conference, Lester’s counsel emailed Harbor Freight’s counsel and asked, “Has the money been distributed yet from the PAGA settlement? As far as I can tell, this completely wipes out the PAGA claims in Lester as well as Blanco.” Harbor Freight’s counsel responded, “Most of the settlement proceeds have already been distributed, including payment to the LWDA. We expect to complete distribution to the PAGA group by the end of summer.”

In mid-August 2018, more than a month after the arbitration conference and subsequent correspondence, Blanco’s counsel followed up with Harbor Freight’s counsel, with copies to Lester’s counsel. Blanco’s counsel wrote, “[W]e never got a response from you as to the question of whether the Armendariz settlement impacts our PAGA cases. Please confirm by Monday. If it does, then we will be intervening. Please advise.” Harbor Freight’s counsel responded that “a thorough analysis” of how the Armendariz settlement would affect Blanco’s PAGA claims would be “premature” because Blanco had not yet shown she was an aggrieved employee. But, he wrote, Harbor Freight “reserves all applicable defenses, including the settlement reached in Armendariz.” In reply, Blanco’s counsel accused Harbor Freight of “gamesmanship” and wrote that “we have no choice but to move forward with intervention.” Harbor Freight’s counsel responded, “You can analyze hypothetical situations and reach your own assessment of whether and/or how the Armendariz settlement could impact Ms. Blanco’s PAGA case, assuming she demonstrates that she’s an aggrieved employee under the Labor Code.” He again sent the Armendariz complaint and settlement papers. Separately, Lester’s counsel stated that she would “be joining in taking further action as well as this pertains to the PAGA claims asserted in [the Lester action]. At minimum, you and your client have violated court rules by not filing a Notice of Related case.”

Two months later, in late October 2018, Lester’s counsel emailed Harbor Freight’s counsel with several comments and a list of questions. She wrote, “Now that I have fully researched what has happened here in the Court records and spoken to my client, I have verified that Armendariz does appear to release the [assistant managers] included within the scope of Mr. Lester’s PAGA claims.” But, in order to “be sure,” she asked Harbor Freight (1) whether the Armendariz settlement had an exclusion for assistant managers “not included in the documents you sent,” (2) whether Harbor Freight would contend that Lester’s PAGA claims were released in Armendariz, and (3) whether Lester had been sent a settlement check for his share of the PAGA civil penalties. Lester’s counsel also requested a copy of the PAGA letter Armendariz sent to the LWDA and proof of service of the settlement documents on the LWDA. She asserted that Harbor Freight had failed to file a notice of related case in Lester (and in Armendariz) and argued that the Armendariz settlement improperly released the time period encompassed by Lester’s lawsuit. Lester’s counsel concluded, “In light of all the above, we will be moving to lift the stay [in Lester] in light of the Armendariz settlement to continue litigating [a co-plaintiff’s] claims and to allow the Court to examine whether or not Mr. Lester’s PAGA claims have been released.”

Harbor Freight’s counsel responded that there was no basis to lift the stay in Lester. He stated that Lester was a member of the group covered by the Armendariz PAGA settlement and was sent a check by the settlement administrator several weeks earlier. He confirmed that Harbor Freight would assert the Armendariz settlement and release as a defense to Lester’s PAGA claims. He noted that the PAGA letter and proofs of service on the LWDA were included in the settlement papers provided to Lester’s counsel in June 2018. He disputed that Lester and Armendariz were related cases under the California Rules of Court, rule 3.300.

Approximately three weeks later, Lester filed a notice of intent to move for an order setting aside the judgment in the Armendariz action. In his subsequent motion, Lester argued that the court had the authority to vacate or modify the judgment on two grounds: first, under Code of Civil Procedure section 663, because the judgment was based on an erroneous understanding of the facts; and second, under the court’s equitable power, because Harbor Freight committed extrinsic fraud in concealing the existence of the Armendariz action from Lester (and the Lester action from the Armendariz court). Lester argued that the Armendariz settlement was not fair, adequate, or reasonable and it improperly released the time period encompassed by Lester’s lawsuit. Lester requested an order vacating the Armendariz judgment, crediting the settlement payments to any future judgment or settlement, and staying the Armendariz litigation pending the outcome of the Lester and Blanco actions. Lester contended that a new judgment should be entered following further briefing.

In support of his motion, Lester submitted a declaration from his counsel including the correspondence described above. Lester’s counsel stated that she was unaware of the Armendariz action prior to May 2018, when she received the arbitration disclosures. She confirmed that Lester had received a $1.25 check as a result of the Armendariz settlement, but she was unsure of the date when he received it. Lester also submitted a declaration from Blanco’s counsel, who stated that he was likewise unaware of the Armendariz action before Lester’s counsel contacted him about it. Harbor Freight had not filed a notice of related case in the Blanco action either.

Harbor Freight opposed Lester’s motion. It argued that Lester’s motion was untimely under Code of Civil Procedure sections 663 and 663a, Lester lacked standing to move to vacate the judgment, Harbor Freight had not committed extrinsic fraud because it was not required to file a notice of related case, Lester had not acted diligently in filing his motion, and the court properly approved the Armendariz settlement on its merits. Harbor Freight included a declaration from its counsel, who stated among other things that neither Lester nor Blanco had filed a notice of related case in their actions after discovering the existence of the Armendariz action.

In a written order, the trial court denied Lester’s motion to vacate. It found that Lester’s motion under Code of Civil Procedure section 663 was untimely because it was filed more than 180 days after entry of judgment. As to extrinsic fraud, the court found that Harbor Freight was “probably required” to file a notice of related case identifying the Armendariz action. But the court concluded that Lester had shown neither a substantial substantive position on the merits, i.e., that the settlement was improperly approved, nor diligence in pursuing his motion. Lastly, the court found that Lester did not have standing to challenge the settlement because the parties had complied with PAGA’s procedures. Lester appeals.

DISCUSSION

Lester contends the trial court erred by denying his motion to vacate. In this appeal, he argues only that the court should have granted the motion on equitable grounds. He does not challenge the court’s denial of his statutory motion under Code of Civil Procedure sections 663 and 663a. We therefore consider only the former issue and not the latter. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 (Cahill).)

“Under certain circumstances a court, sitting in equity, can set aside or modify a valid final judgment. [Citations.] This power, however, can only be exercised when the circumstances of the case are sufficient to overcome the strong policy favoring the finality of judgments.” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 470.) “Equity’s jurisdiction to interfere with final judgments is based upon the absence of a fair, adversary trial in the original action. ‘It was a settled doctrine of the equitable jurisdiction—and is still the subsisting doctrine except where it has been modified or abrogated by statute . . . that where the legal judgment was obtained or entered through fraud, mistake, or accident, or where the defendant in the action, having a valid legal defense on the merits, was prevented in any manner from maintaining it by fraud, mistake, or accident, and there had been no negligence, laches, or other fault on his part, or on the part of his agents, then a court of equity will interfere at his suit, and restrain proceedings on the judgment which cannot be conscientiously enforced. . . . The ground for the exercise of this jurisdiction is that there has been no fair adversary trial at law.’ [Citation.] Typical of the situations in which equity has interfered with final judgments are the cases where the lack of a fair adversary hearing in the original action is attributable to matters outside the issues adjudicated therein which prevented one party from presenting his case to the court, as for example, where there is extrinsic fraud [citations] or extrinsic mistake.” (Olivera v. Grace (1942) 19 Cal.2d 570, 575 (Olivera).)

“Extrinsic fraud is a broad concept that ‘[tends] to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing.’ [Citations.] It ‘usually arises when a party . . . has been “deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.” ‘ ” (In re Marriage of Modnick (1983) 33 Cal.3d 897, 905; accord, Estate of Sanders (1985) 40 Cal.3d 607, 614-615.)

“One who has been prevented by extrinsic factors from presenting his case to the court may bring an independent action in equity to secure relief from the judgment entered against him. [Citations.] Where the court that rendered the judgment possesses a general jurisdiction in law and in equity, the jurisdiction of equity may be invoked by means of a motion addressed to that court.” (Olivera, supra, 19 Cal.2d at pp. 575-576.) “The remedy is available not only to a party who by reason of the extrinsic fraud has been deprived of an opportunity to present his case or obtain a fair adversary proceeding [citations], but also to a stranger whose interests have been adversely affected by the judgment [citations].” (Hickey v. Roby (1969) 273 Cal.App.2d 752, 768; accord, Babbitt v. Babbitt (1955) 44 Cal.2d 289, 293.)

The parties agree that a person seeking equitable relief from a final judgment must establish three elements: (1) facts constituting extrinsic fraud or mistake; (2) a substantial defense or position on the merits; and (3) diligence in seeking relief from the adverse judgment. (Warga v. Cooper (1996) 44 Cal.App.4th 371, 376, citing In re Marriage of Damico (1994) 7 Cal.4th 673, 688 (conc. opn. of Kennard, J.) (Damico).) The parties likewise agree that we review the trial court’s denial of Lester’s motion to vacate for abuse of discretion. (Gamet, supra, 91 Cal.App.4th at p. 1283; accord, In re Marriage of Park (1980) 27 Cal.3d 337, 347.) “The test for abuse of discretion is ‘whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.’ ” (Gamet, at p. 1283.)

We conclude Lester has not shown the trial court abused its discretion by denying his motion to vacate. The court could reasonably have found that Lester did not establish the third element, i.e., diligence in seeking relief from the Armendariz settlement. “It is blackletter law that an unjust judgment or order by itself is not enough to grant relief under equitable principles. In order to succeed, the aggrieved party in addition must show a satisfactory excuse for not having made his claim or defense in the original action and diligence in seeking relief after discovery of the facts [citations].” (DeMello v. Souza (1973) 36 Cal.App.3d 79, 85; see 8 Witkin, Cal. Proc. (5th ed. 2008) Attack on Judgment in the Trial Court, §§ 219, 238.) ” ‘[T]he power to vacate upon motion a judgment obtained by fraud is inherent in courts of general jurisdiction, and . . . the same may be exercised after the lapse of the statutory time which limits the entertainment of applications based upon surprise, inadvertence and so forth, provided that such motions are made within a reasonable time. What is a reasonable time is a matter of sound legal discretion in the court in which the motion is made.’ ” (McGuinness v. Superior Court (1925) 196 Cal. 222, 232, italics added; see Damico, supra, 7 Cal.4th at p. 690 (conc. opn. of Kennard, J.) [“Courts require that a party seek relief as soon as reasonably possible after learning of an adverse judgment.”].)

For example, in Pulte Homes Corp. v. Williams Mechanical, Inc. (2016) 2 Cal.App.5th 267, a defendant sought equitable relief from a default judgment. The defendant’s insurer became aware of the default judgment and requested certain documents from the plaintiff, but it did not retain counsel or file the motion to vacate until approximately four months later. (Id. at p. 271.) The insurer claimed it did not receive the requested documents for three months, but the reviewing court found “[t]his is not a sufficient excuse for its failure to file a motion for equitable relief in the interim” because the insurer did not explain why it was unable to file such a motion without the documents. (Id. at p. 277.) The reviewing court further faulted the insurer for delaying another month, after receiving the documents, before retaining counsel for the defendant insured. (Id. at p. 278.) The reviewing court held on these facts that the defendant had not acted diligently. (Ibid.) It reversed the trial court’s contrary order. (Ibid.)

Although Pulte Homes involved a default judgment, its holding demonstrates that the trial court did not abuse its discretion in finding a lack of diligence here. Lester’s counsel received the documents necessary to determine whether the Armendariz settlement impacted Lester’s claims (including Armendariz’s complaint, the settlement and release agreement, and the resulting judgment) in June 2018. Lester delayed filing his motion until November 2018, more than five months later. In the interim, Lester’s counsel acknowledged multiple times that the judgment likely affected Lester’s PAGA claims, including the following admissions in writing: (1) Armendariz “does appear to overlap with our case” (June 2018); (2) “As far as I can tell, this completely wipes out the PAGA claims in Lester as well as Blanco” (July 2018); and (3) “Now that I have fully researched what has happened here in the Court records and spoken to my client, I have verified that Armendariz does appear to release the [assistant managers] included within the scope of Mr. Lester’s PAGA claims” (October 2018).

To explain this delay, Lester blames Harbor Freight’s counsel for not expressly telling his counsel that Harbor Freight would use the Armendariz settlement as a defense to Lester’s claims. But, viewing the record in the light most favorable to the trial court’s order, as we must, it shows that Harbor Freight’s counsel told Lester’s counsel in a telephone conference that the Armendariz settlement would bar Lester’s PAGA claims in July 2018. While Lester’s counsel disputes this fact, the trial court was entitled to resolve the dispute in favor of Harbor Freight. And, it is undisputed that in August 2018 Harbor Freight’s counsel told Blanco’s counsel (with copies to Lester’s counsel) that his client “reserves all applicable defenses, including the settlement reached in Armendariz.” Moreover, even setting aside these facts, the trial court could reasonably find that Lester’s counsel should have made her own assessment of the scope and effect of the Armendariz settlement rather than rely on opposing counsel.

Lester contends that he could not have known the Armendariz settlement was adverse to him until he received a settlement check. He argues, “At any point prior to Lester’s receipt of a settlement check, [Harbor Freight] could have claimed that the Armendariz Judgment did not cover Lester or the aggrieved employees for whom he pursued penalties in the Lester action.” Lester does not cite any legal authority for the proposition that he would only be bound by the judgment if he received a settlement check, and we are aware of none. In any event, the trial court was entitled to conclude on this record that it was not reasonable for Lester to wait until he received a settlement check to move to vacate the judgment. The scope and effect of the PAGA release was plain from the language of the Armendariz settlement agreement itself and confirmed by the documents submitted to the trial court in connection with the motion to approve, all of which Lester’s counsel had in June 2018. Lester’s counsel admitted in July 2018 that the settlement appeared to “completely wipe[] out” Lester’s PAGA claims. Lester did not need to wait until receiving a check to protect what he believed was his right to object to the settlement.

Lester also contends the trial court abused its discretion because it used the wrong legal standard to assess diligence. ” ‘ “A trial court abuses its discretion when it applies the wrong legal standards applicable to the issue at hand.” ‘ ” (Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1494.) We must, however, “presume that the court properly applied the law and acted within its discretion unless the appellant affirmatively shows otherwise.” (Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151, 158; accord, Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Here, the trial court began its written order by concluding that Lester’s motion was untimely under Code of Civil Procedure sections 663 and 663a because it was filed more than 15 days after Lester received a notice of entry of the Armendariz judgment and more than 180 days after the judgment was entered. Later, in discussing Lester’s equitable motion, it wrote, “As stated above, Lester also fails in the ‘diligence’ element. This motion is simply late.” Lester claims the court’s latter comment shows it applied the deadlines applicable to his statutory motion to his equitable motion, rather than considering separately the element of diligence. We disagree. Citing Damico, the trial court’s order correctly identifies the three elements of Lester’s equitable motion, including “diligence in seeking relief from the adverse judgment.” The portion of the court’s order cited by Lester expressly references the ” ‘diligence’ element” in this context. The court’s analysis of Lester’s statutory motion was relevant to the diligence issue because it showed that Lester was aware of the Armendariz judgment before the statutory deadlines expired, but he did not move to vacate the judgment within that time. It supports the trial court’s finding that Lester was not diligent. Lester has not shown the trial court simply applied the statutory deadlines to Lester’s equitable motion, and he has not overcome the presumption that the trial court understood and applied the law correctly. (See Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563.)

In a footnote in his opening brief, Lester contends the order should be reversed because the trial court allegedly did not consider his argument that the Armendariz judgment was the result of fraud on the court itself. This contention is not supported by any reasoned legal argument or authority. We therefore consider it waived. (See Cahill, supra, 194 Cal.App.4th at p. 956; Stoll v. Shuff (1994) 22 Cal.App.4th 22, 25, fn. 1.) Even if we were to consider this contention, it is unpersuasive. We presume the trial court’s order is correct, and any ambiguities are resolved in favor of affirmance. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) The trial court denied Lester’s motion in its entirety, which necessarily includes all of its constituent parts. Lester has not shown that the trial court refused to consider an argument based on fraud on the court. Lester notes that a party’s lack of diligence “does not prevent a court from vacating a judgment where there has been fraud on the court,” citing Hazel-Atlas Glass Co. v. Hartford-Empire Co. (1944) 322 U.S. 238, 246. But this general principle is insufficient to show that the trial court abused its discretion by denying Lester’s motion under the circumstances here. We note that Lester’s motion in the trial court offered only a cursory argument based on the theory of fraud on the court, and the motion did not mention the lack of a diligence requirement under this theory at all. Lester cannot advance this argument for the first time on appeal. (See Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.) Lester has not shown the order should be reversed on this basis either.

DISPOSITION

The order is affirmed. Harbor Freight shall recover its costs on appeal.

GUERRERO, J.

WE CONCUR:

BENKE, Acting P. J.

DATO, J.