Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. A227258, Marjorie Laird Carter, Judge.
Charles Henderson Walke, in pro. per., for Plaintiff, Cross-defendant, and Appellant.
William C. Bozarth for Defendant, Cross-complainant, and Respondent.
OPINION
IKOLA, J.
Charles Henderson Walke appeals from a default judgment against him on the petition filed by Diana J. LeBlanc, as trustee of the Nancy Henderson Walke 2003 Trust (the Trust). Walke and LeBlanc are siblings; the dispute between them involved the house in which their mother (Nancy) and Walke lived in for 17 years prior to Nancy’s death in 2004 and which Nancy deeded to the Trust in 2003. We affirm the judgment.
FACTS
After Nancy passed away, Walke continued to live in the house. On September 16, 2004, he filed an ex parte application asking the court to set aside the transfer of the house to the Trust and to stay “all related cases,” and the sale of the house “pending a noticed hearing and the court’s ruling thereon.” The document was entitled, “Petitions for Orders: to Set Aside Real Property Transferred to Trust and a Stay on all Related Cases & on Sale of Real Property Pending Hearing on Petition for a Judicial Ruling on Petitioner’s Right, Title and Interest in the Real Property.” Despite the title of the document filed with the court, the document did not include a petition for a judicial determination of Walke’s interest in the house. In his attached declaration, Walke declared, inter alia, he co-bought the house with Nancy in 1987 and they held title as joint tenants until Nancy asked him in 1998 to deed his interest to her so she could obtain a new loan. According to Walke, Nancy promised to “add [him] back on the title once the process was completed,” but never did so.
That same day LeBlanc, as trustee, filed an “Opposition to Exparte Motion of Charles Henderson Walke and Petition for Orders,” which, inter alia, requested the Trust be confirmed as owner of the house, the Trust be authorized to sell the house, and that Walke, his girlfriend, and the girlfriend’s mother be ejected from the house.
Also on that day, the court granted a stay on Walke’s ex parte application, staying “all related proceedings, known or unknown at the present time,” and the sale of the house. The court ordered Walke to make the mortgage payments on the house.
On December 22, 2004, Walke filed a “Petition Supplement for a Judicial Ruling on Petitioner’s Right, Title and Interest in the Real Property Fraudulently Conveyed to the Trust.” On January 19, 2005, LeBlanc filed a supplement to her petition attaching her verification of the petition. In April 2005, the court ordered Walke to pay homeowners’ association fees and property taxes on the house and continued the trial setting conference to give Walke’s girlfriend and her mother time to respond to LeBlanc’s petition.
On May 17, 2005, the court stated it would “consider [a] request for default” if Walke failed to file his response to LeBlanc’s September 16, 2004 petition, as supplemented, by June 1, 2005. Dates were set for a mandatory settlement conference, pretrial, and trial. At LeBlanc’s request, her petition was dismissed without prejudice as against Walke’s girlfriend and her mother. Instead of responding to LeBlanc’s petition, Walke filed two documents on May 31, 2005, titled “Request for Judicial Notice No. 6” and “Request for Judicial Notice No. 7.”
Because Walke had not responded to LeBlanc’s petition as urged by the court, LeBlanc served Walke with a copy of a request to enter his default on June 3, 2005, and filed the request with the court a month later on July 5, 2005. The clerk entered Walke’s default on the latter date. Meanwhile, on June 15, 2005, LeBlanc, in “an abundance of caution” and in response to Walke’s claim that LeBlanc had “failed to file a written opposition to his Petition,” filed an “Objection to Petition for a Judicial Ruling on Petitioner’s Right, Title and Interest in the Real Property Fraudulently Conveyed to Trust as Supplemented.”
On August 18, 2005, Walke filed a document titled, “Opposition to Respondent Diana J. LeBlanc’s Entry of Default,” but he did not set a date or time for hearing nor did he give any notice of a hearing on his request to set the default aside. In his “opposition” he contended he was not served with the “default document,” and that LeBlanc had failed to reply to his supplemental petition filed “December 21, [sic] 2004.” In his supporting declaration, Walke declared, inter alia, that (1) on “May 17, 2005 [he] was ordered to respond by June 1, 2005 and if [he] did not then the court may consider a default,” and (2) on “May 31, 2005 [he] filed Request for Judicial Notice to support [his] contentions for not answering the Opposition/Petition [since he] was in the process of trying to figure out in the document, what was the opposition part and what was the Petition part and what parts were not at issue since they involved parties that had been dismissed.” As was the case with his “Opposition,” the “Requests for Judicial Notice” he had filed on May 31, 2005, had not scheduled a hearing to resolve his complaints. With nothing placed on the calendar for hearing, it is doubtful the court ever saw any of Walke’s “Requests for Judicial Notice” or his “Opposition,” at least at or near the time the documents were filed.
On September 6, 2005, LeBlanc filed an ex parte application to set a special hearing for default prove-up. On October 18, 2005, she submitted supporting declarations for a default prove-up on her petition, including a copy of the deed whereby Nancy had conveyed title to the house to the Trust. At a default prove-up hearing on December 20, 2005, the court entered judgment against Walke, confirmed LeBlanc’s authority to sell the house on the Trust’s behalf, and ordered Walke to vacate the property.
DISCUSSION
Standard of Review
Walke did not file a motion in the trial court under Code of Civil Procedure section 473 for relief from default. Nor did he make any motion for equitable relief. But on appeal, Walke raises several arguments that should have been made in the trial court. Except in the rarest of circumstances, a Court of Appeal does not make factual findings. Thus, to the extent Walke challenges the entry of the default judgment on equitable grounds, we are powerless to make the requisite factual findings. We review the court’s entry of the default judgment for an abuse of discretion.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
The Court Did Not Stay Proceedings on LeBlanc’s Petition
Walke first challenges the default judgment by interpreting the court’s stay order as a stay of all proceedings on LeBlanc’s petition. He contends the court stayed all proceedings “in the action commenced by the filing of [his own] Petition.” He concludes the court abused its discretion and lacked jurisdiction to grant a default judgment against him.
Contrary to Walke’s claim, the court did not stay proceedings in the instant action. Rather, the court stayed litigation in factually related, but separate cases. The limited scope of the stay is apparent from the language of both Walke’s application for the stay and the court’s order. Walke informed the court of two related cases: (1) an August 17, 2004 ex parte motion filed by LeBlanc for orders for move-out, property restraint and property control (which orders were denied), and (2) an August 18, 2004 unlawful detainer action filed by LeBlanc. In response, the court, in an order titled “Stay on All Related Cases and on Sale of Real Property,” granted a stay “effective immediately on all related proceedings, known or unknown at the present time, including the following which are presently pending: [¶] LeBlanc v. Walke, Orange County Superior Court, Harbor Justice Center — Laguna Hills Facility Case No. 04SL03897.” In the order (presumably drafted by Walke), the court also struck a reference to LeBlanc’s ex parte motion seeking a move out order, presumably since that motion had already been denied (LeBlanc v. Walke (Super. Ct. Orange County, No. 04V001967). Thus, the court’s stay encompassed cases, known or unknown, that were separate and distinct from the instant action. The judge’s intent to limit the stay to separate cases is also evidenced by her granting the default judgment against Walke on LeBlanc’s petition.
Walke contends the court and LeBlanc failed to follow the requirements of section 1008 governing motions for reconsideration. But, because the court never stayed LeBlanc’s petition, LeBlanc was not required to move for a reconsideration of the stay order. In sum, the court did not violate its own stay order or abuse its discretion by granting default judgment against Walke.
Walke’s Claim of Extrinsic Fraud Was Not Presented to the Trial Court
Walke contends that due to “misleading” settlement offers, he and his attorney believed the case was close to settling and therefore did not move to set aside his default. He asserts that in discussions in chambers with both parties, the court proposed to give him joint tenancy equity in the house through May 1998 on condition he open an escrow by December 15, 2005. He concludes the default judgment against him was procured by extrinsic fraud, depriving him of a fair hearing. But a finding of extrinsic fraud necessarily requires a trier of fact to determine the true facts, and whether the facts as found resulted in preventing Walke from defending the case. As noted ante, this is an argument that should have been presented to the trial court in the first instance. The Court of Appeal is not the proper forum to decide contested issues of fact.
Walke acted in propia persona for most of the proceedings and retained an attorney for a brief period to contest the default judgment, but the attorney withdrew before entry of judgment.
The Court Did Not Abuse Its Discretion In Ordering Walke to “Immediately” Vacate the House
Walke challenges the court’s order in the default judgment requiring him to “immediately” vacate the house. He argues LeBlanc’s counsel drafted the written judgment and improperly used the adverb “immediately” even though the court orally stated only that “Walke is ordered to vacate the property.” He notes that at the default prove-up hearing, LeBlanc’s counsel stated Walke would have “sufficient time” to vacate the house. He asserts LeBlanc then obtained “an immediate writ of possession and execution” in her unlawful detainer action against him, giving him five days to move out.
Apparently, Walke questions whether the written judgment reflects the court’s true intention. But the court signed the judgment which contained a clearly-written, separate paragraph ordering Walke to immediately vacate the house. Walke did not move to amend or vacate the judgment. He cannot now complain about the word “immediately.”
LeBlanc’s Procedural Errors Did Not Prejudice Walke
According to Walke, LeBlanc committed many procedural errors, including failure to verify her petition (Cal. Rules of Court, rule 7.103 [probate pleadings must be verified]), reply to Walke’s supplemental petition, file her petition as a separate document (§ 428.40 [cross-complaint must be a separate document]), state in her ex parte application for a default prove-up hearing whether anyone had requested special notice (Cal. Rules of Court, rule 7.55 [ex parte application for order must allege whether special notice was requested]), and file a proof of service with her petition (Cal. Rules of Court, rule 3.110 [proof of service required for complaint or cross-complaint]).
As Walke acknowledges, however, a judgment may not be reversed for errors or defects in the pleadings or proceedings which do not affect the parties’ substantial rights. (§ 475.) Thus, a judgment may be reversed for an error or defect in the pleadings or proceedings only if it appears from the record that the error or defect was prejudicial and caused the appealing party to suffer substantial injury, and that a different result would have been probable absent the error or defect. Here, Walke does not explain how the result would have been different had LeBlanc not committed the alleged errors. The errors were harmless and LeBlanc ultimately corrected most of them. For example, LeBlanc filed a verification to her petition four months after filing the petition. Her ex parte application for a default prove-up hearing listed Walke as a trust beneficiary entitled to notice. Walke acknowledges he received copies of LeBlanc’s opposition and petition several times (e.g., in open court on April 5, 2005), as further confirmed by LeBlanc’s proof of service of that date.
Finally, Walke contends LeBlanc’s petition was a cross-complaint that LeBlanc should have filed as a separate document under section 428.40, instead of the combined opposition and petition she actually filed. Walke’s contention, however, assumes his September 16, 2004 document was itself a petition under Probate Code section 850, subdivision (3)(A), which authorizes the “trustee or any interested person” in a case where the trustee holds title to real property claimed by another person to “file a petition” requesting a court order regarding the transfer of the property. Such a petition requires the petitioner to give notice of hearing. (Prob. Code, § 851.) Walke’s September 16, 2004 document requested an ex parte stay on all related cases “pending a noticed hearing and the court’s ruling thereon” and was titled “Petition for Orders: to Set Aside Real Property Transferred to Trust and a Stay on All Related Cases & on Sale of Real Property Pending Hearing on Petition for a Judicial Ruling on Petitioner’s Right, Title and Interest in the Real Property.” Except for the title, the document did not include a petition by Walke for a judicial determination of his interest in the house nor was such a petition on file with the court at the time. LeBlanc treated Walke’s September 16, 2004 filing as a motion for a stay; thus, the document she filed that same day opposed his motion and petitioned the court for several orders. Not until December 22, 2004, did Walke file a “Petition Supplement” for a judicial ruling on his interest in the property. Subsequently, LeBlanc, in “an abundance of caution,” filed an objection to Walke’s September 16, 2004 petition. Given this confusing array of pleadings, it is unclear which document was a petition and which a cross-petition.
In addition to this jumble of pleadings, the record is replete with Walke’s numerous court filings, most entitled “Request for Judicial Notice,” containing his often irrelevant and sometimes incomprehensible declarations and arguments. It was within this context that the court, undoubtedly frustrated, urged Walke to answer LeBlanc’s petition by June 1, 2005, or risk default. Despite the court’s clear warning, Walke did not reply to LeBlanc’s petition, but instead filed yet another Request for Judicial Notice in which he alleged that the copy of LeBlanc’s opposition served on him had been “modified or tampered” from the original version filed with the court (based on the location and date of signature blocks). On this basis, Walke stubbornly refused to answer LeBlanc’s petition. Under these circumstances, the court did not abuse its discretion by granting default judgment against him.
DISPOSITION
The judgment is affirmed. Diana J. LeBlanc, as trustee of the Nancy Henderson Walke 2003 Trust, is awarded costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.