Torian v. Herchko CA2/2

Opinion

Filed 9/18/26 Torian v. Herchko CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

NATHAN S. TORIAN, B351855 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. 22PDRO01734) v. GRIFFEN J. HERCHKO, Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County. Timothy Martella, Judge. Affirmed. Griffen J. Herchko, in pro. per., for Defendant and Appellant. No appearance for Plaintiff and Respondent. ________________________________ Griffen J. Herchko appeals from the denial of a motion to vacate a three-year civil harassment restraining order. The restraining order was entered approximately two-and-a-half years before Herchko moved to vacate it. Herchko’s motion was procedurally improper and untimely. Moreover, he fails to present an adequate record on appeal. We accordingly affirm the trial court’s order. BACKGROUND In December 2022, Nathaniel Torian filed a request for a civil harassment restraining order against Herchko. In support of his request, Torian provided a written statement that he had met Herchko one time, as Herchko previously dated his sister. According to Torian, in November 2021, Herchko began sending Torian repeated, unwanted messages and e-mails claiming that Torian was in possession of a mind control torture device, and Herchko made posts on the Internet making similar claims and listing Torian’s personal contact information. Torian submitted screenshots of numerous messages from Herchko. A sampling of these messages included a claim that Torian had stolen $250,000 in merchandise and had “the intent to harm with your radar sound system.” Herchko continued, “They are using the Frey Effect. Microwave technology to communicate with me. Not only can they use thermal expansion to vibrate my inner ear with microwaves they can also Monitor my inner ear staple to simply hear me talk to them.” He also claimed, among other things, that Torian and others “built a telecommunications system that has the ability to render humans civil liberties obsolete through covert measures of video and audio surveillance. This system, using microwave and RADAR systems, is also capable of inflicting discomfort and harm on humans at a range of 2000 feet while rendering useless any obstacles in its directed path.” According to Torian, Herchko sent similar messages to Torian’s relatives. The trial court entered a temporary restraining order against Herchko and in favor of Torian and his wife in December 2022.

2 Following entry of the temporary restraining order, Torian sought a civil harassment restraining order after hearing (Code Civ. Proc.,1 § 527.6) against Herchko. Herchko filed an affidavit in opposition to Torain’s request for restraining order after hearing. In his affidavit, which totaled about 60 single-spaced pages, Herchko detailed what he believed was Torian’s use of an electromagnetic radiation communications system that allows the user to remotely implant thoughts into the victim’s head and inflict pain. Herchko related abnormalities in his internal monologue and physical sensations that he believed demonstrated the existence of and flaws in the communications system. In his affidavit, Herchko also accused Torian of falsifying evidence and committing perjury in obtaining the temporary restraining order, though he acknowledged that he sent numerous messages to Torian, his family, and acquaintances and posted statements with similar content on the Internet. The trial court held a bench trial on February 23, 2023. Herchko appeared remotely, while Torian appeared with counsel. After hearing testimony and admitting documentary evidence, the trial court issued a civil harassment restraining order after hearing for a duration of three years. Among other things, the restraining order prohibited Herchko from contacting Torian or his wife, or publishing their name or contact information online. Two-and-a-half years later, in September 2025, Herchko filed a motion to set aside the judgment (the restraining order) pursuant to section 473, subdivision (b). The stated reasons were asserted fraud upon the court allegedly perpetrated by Torian’s attorney, which included alleged suppression of exculpatory evidence and misleading Herchko regarding procedure. Herchko additionally argued that, 1 Undesignated statutory references are to the Code of Civil Procedure.

3 although the trial court accepted the filing of Herchko’s affidavit he submitted in opposition to the requested restraining order, the court misfiled the affidavit and failed to review or reference it. Torian opposed the motion to vacate. The trial court held a hearing on the motion to vacate in October 2025. After advising the parties that it had read all moving papers and hearing oral argument, it denied the motion. Herchko filed a notice of appeal from the trial court’s order. DISCUSSION Herchko attempts to appeal from the order denying his motion to vacate the civil harassment restraining order. He argues that the trial court improperly failed to consider his affidavit opposing the request for restraining order and, because of this error, his motion to vacate the restraining order should have been granted.2 I. Herchko’s motion was improper and untimely Herchko’s appeal fails for a number of fundamental reasons. First, his purported motion to vacate was procedurally improper. Herchko brought his motion under section 473, subdivision (b). Section 473, subdivision (b), however, only allows for relief from a judgment or order “taken against the party through the party’s mistake, inadvertence, surprise, or excusable neglect.” And mandatory relief under the subdivision “only applies to a default, a default judgment, or a dismissal.” (The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, 996.) None of these conditions were present here. Herchko did not argue that the restraining order was issued due to a mistake or negligence of his own, and no default or dismissal was entered.

2 No respondent’s brief was filed. “[W]e do not treat the failure to file a respondent’s brief as a ‘default’ (i.e., an admission of error) but independently examine the record and reverse only if prejudicial error is found.” (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197, 1203.)

4 Instead, Herchko argued that the trial court committed error by issuing the restraining order without considering his affidavit. Under these circumstances, Herchko’s proper challenge would have been a timely motion for new trial under section 663, which allows for a judgment or decree to be vacated for resting on an incorrect or erroneous legal basis, or if it is inconsistent with or not supported by the facts. (§ 663, subd. 1.) Herchko failed to bring a motion for new trial. Second, even if Herchko’s motion could be construed as a motion for new trial, it would be untimely. Herchko would have had to give notice of his intention to file a new trial motion within, at latest, 180 days after entry of the order. (§ 663a, subd. (a)(2).) The time period for giving notice would have run by August 22, 2023, more than two years before Herchko filed his motion to vacate the judgment. This time period was jurisdictional and could not have been disregarded by the court. (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 342.) And, even if the restraining order could have been challenged under section 473, subdivision (b), as attempted, the challenge likewise was untimely, since section 473, subdivision (b) sets a six-month filing deadline from entry of the judgment or order. (See also Arambula v. Union Carbide Corp. (2005) 128 Cal.App.4th 333, 344.) Under either theory, Herchko’s motion was untimely. On appeal, Herchko argues that the motion instead should have been considered under section 473, subdivision (d), which allows the court to “set aside any void judgment or order.” If the restraining order was properly challenged as void under section 473, subdivision (d), Herchko’s motion could potentially be timely, since “[t]here is no time limit to attack a judgment void on its face.” (Pittman v. Beck Park Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1021 (Pittman).) There is a distinction, however, between a judgment or order that is void, and one that is merely voidable. (Lee v. An (2008) 168 Cal.App.4th 558, 563.) A challenge to a voidable judgment under section 473 is subject to the general six-month time limit. (Ibid.)

5 “A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.” (In re Marriage of Goddard (2004) 33 Cal.4th 49, 56 (Goddard).) Most procedural errors, including the “ ‘improper admission or rejection of evidence,’ ” do not render a judgment or order void. (Id. at pp. 56–57.) “An order is considered void on its face only when the invalidity is apparent from an inspection of the judgment roll or court record without consideration of extrinsic evidence. [Citations.] . . . If the invalidity can be shown only through consideration of extrinsic evidence, such as declarations or testimony, the order is not void on its face.” (Pittman, supra, 20 Cal.App.5th at p. 1021.) Under Herchko’s theory, the court improperly considered the parties’ evidence in issuing the restraining order. Herchko contends that the minute order issued on the date of the restraining order shows that the trial court considered Torian’s evidence but did not consider his affidavit. Even if correct, any error would not result in the restraining order being void, since such error would not indicate a lack of the court’s fundamental authority, but only an improper rejection of evidence. (Goddard, supra, 33 Cal.4th at p. 56.) Thus, if we were to consider Herchko’s challenge as one brought under section 473, subdivision (d), it would still be untimely. II. The record on appeal is inadequate The record on appeal only includes a clerk’s transcript and does not contain a reporter’s transcript of any trial court proceedings, including the restraining order hearing or the hearing on the motion to vacate. Nor does the record contain a suitable substitute to a reporter’s transcript, such as a settled statement under California Rules of Court, rule 8.137. The inadequate record presented by Herchko is another, independent reason that the trial court’s order must be affirmed. “If an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court, the record 6 on appeal must include a record of these oral proceedings.” (Cal. Rules of Court, rule 8.120(b).) “ ‘ “[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” ’ ” (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 187.) “ ‘Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant].’ ” (Ibid.) Again, Herchko’s primary basis for his motion to vacate was that the trial court failed to consider his evidence, the affidavit, at the restraining order hearing. Herchko notes that the trial court’s February 23, 2023 minute order for the restraining order hearing stated that numerous exhibits submitted by Torian were “admitted into evidence.” In contrast, the minute order did not reference the lengthy affidavit submitted by Herchko prior to the hearing. Herchko also observes that the online docket for the case appeared to erroneously list the affidavit as being filed by the “Petitioner” in the case, who was Torian. Without a reporter’s transcript of the restraining order hearing, however, it is not possible for this court to conclude that the trial court did not receive or consider Herchko’s affidavit. It is possible that, at the hearing, Torian (through counsel) objected to the affidavit and it was excluded from evidence. It is also possible that Herchko failed to move the affidavit into evidence, which may explain why it was not listed in the court’s minute order. In short, without an adequate record, Herchko cannot demonstrate that any procedural improprieties occurred at the restraining order hearing. Similarly, Herchko’s failure to submit a reporter’s transcript or its equivalent for the hearing on the motion to vacate also precludes a finding of error. To the extent that Herchko’s motion raised possible error in the issuance of the restraining order, the record of oral argument may support the trial court’s ruling. For example, the trial court may have explained that it did consider the affidavit, or it may have indicated that the affidavit was not properly considered. In any 7 event, without a record of the hearing, we are left to guess at the content of the proceedings. We cannot reverse a trial court order based on mere speculation. DISPOSITION The order is affirmed. Herchko shall bear his own costs on appeal. NOT TO BE PUBLISHED.

LUI, P. J. We concur:

CHAVEZ, J.

GOORVITCH, J.