Opinion
E066209
05-08-2018
LINDA WRIGHT, Plaintiff and Appellant, v. LLOYD ROBINSON, Defendant and Respondent.
Linda Wright, Plaintiff and Appellant in pro. per. Law Offices of Walter J. Damboise and Walter J. Damboise for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. CIVDS1309752) OPINION APPEAL from the Superior Court of San Bernardino County. Gilbert G. Ochoa, Judge. Affirmed. Linda Wright, Plaintiff and Appellant in pro. per. Law Offices of Walter J. Damboise and Walter J. Damboise for Defendant and Respondent.
Plaintiff Linda Wright alleges that her neighbor, defendant Lloyd Robinson, has persecuted her: "I have been threatened, [subjected to] a false citizen['s] arrest, my property destroyed, my property taken over, my good name slandered . . . ." We caution, however, that Robinson has not yet had an opportunity to tell his side of the story.
Wright obtained a default judgment against Robinson. On Robinson's motion, the trial court vacated the default judgment. On Wright's motion, however, the trial court reinstated the default judgment. Finally, on Robinson's motion, the trial court once again vacated the default judgment.
Wright appeals. We will hold that the trial court's last order — vacating the default judgment — was supported by substantial evidence. We will also hold that the trial court's earlier ruling reinstating the default judgment did not preclude it from once again vacating the default judgment. In addition, we will reject Wright's claim that the trial judge was biased.
I
PROCEDURAL BACKGROUND
On August 14, 2013, Wright (then in pro. per.) filed this action against Lloyd and Marie Robinson, asserting causes of action including intentional infliction of emotional distress, malicious prosecution, assault and battery, invasion of privacy, and defamation.
On October 4, 2013, at Wright's request, the trial court clerk entered the Robinsons' default.
On January 31, 2014, after a default prove-up hearing, the trial court entered a default judgment, against Lloyd Robinson only, in the amount of $107,980.
On July 17, 2014, the Robinsons (also in pro. per.) filed a motion to vacate the defaults and the default judgment under Code of Civil Procedure section 473, subdivision (b), on the ground that they had been unaware of the case until recently. Wright did not file an opposition and did not appear at the hearing. On November 3, 2014, the trial court granted the motion; it therefore vacated the defaults and the default judgment.
On December 1, 2014, the Robinsons filed an answer.
On December 11, 2014, the case was assigned to Judge Gilbert G. Ochoa.
Wright then made a series of attempts to reinstate the default judgment.
On April 1, 2015, she presented an ex parte application for reconsideration, which the trial court denied.
From April 28, 2015 on, Wright was represented by counsel. On that date, she filed a motion to vacate the order vacating the default judgment. On July 7, 2015, the trial court denied the motion, but without prejudice; it suggested that she could refile it.
Finally, on August 14, 2015, Wright filed a motion for reconsideration, under Code of Civil Procedure section 1008, of the order vacating the default judgment. She argued that: (1) her complaint had, in fact, been personally served on the Robinsons, and (2) neither the Robinsons' motion to set aside the default judgment nor the order setting aside the default judgment had been served on her.
The Robinsons did not file an opposition. However, Lloyd Robinson did appear at the hearing on September 11, 2015. He claimed that he did not receive Wright's motion until a week before the hearing, and he was not aware of it until three days before the hearing. However, he did not request a continuance. The trial court granted the motion and reinstated the default judgment.
From November 12, 2015 on, the Robinsons were represented by counsel.
On November 16, 2015, the trial court ordered that Marie Robinson be dismissed without prejudice.
On December 8, 2015, Lloyd Robinson filed a second motion to vacate the default judgment on the ground that "the default judgment was taken against defendant through . . . surprise pursuant to C.C.P. 473(b)."
Even though the default judgment was solely against Lloyd Robinson, and even though the trial court had ordered Marie Robinson dismissed, the motion was made in the names of both of the Robinsons. The parties now agree that this was a nullity and that Lloyd Robinson is the only respondent in this appeal.
In the supporting declarations, the Robinsons testified that they were not properly served and that Wright's proofs of service were defective. They also testified that: (1) their first motion to vacate the default judgment was, in fact, served on Wright, and (2) Wright's motion to reinstate the default judgment was not properly served on them.
Wright filed an opposition arguing that the motion was "simply a repeat" of the Robinsons' opposition to her motion to reinstate the default judgment.
On April 4, 2016, the trial court granted the motion; thus, once again, it vacated the default and the default judgment against Lloyd Robinson.
II
APPEALABILITY
An order granting a statutory motion to set aside a default judgment is appealable as an order made after an appealable judgment. (Code Civ. Proc., § 904.1, subd. (a)(2); Elsea v. Saberi (1992) 4 Cal.App.4th 625, 628; Himmel v. City Council of Burlingame (1959) 169 Cal.App.2d 97, 98, fn. *.)
III
RES JUDICATA
Wright contends that the order granting her motion to reinstate the default judgment required the trial court to deny Robinson's motion to vacate the default judgment, as a matter of res judicata.
Wright did not raise res judicata below. Accordingly, she has forfeited it as an issue on appeal. (David v. Hermann (2005) 129 Cal.App.4th 672, 683.)
Even if not forfeited, it lacks merit.
"The doctrine of res judicata or claim preclusion dictates that in ordinary circumstances a final judgment on the merits prevents litigation of the same cause of action in a second suit between the same parties. [Citation.]" (F.E.V. v. City of Anaheim (2017) 15 Cal.App.5th 462, 465, italics added.)
Thus, "[a]s a general matter, it is unquestioned that a trial court's ruling on an ordinary motion is not res judicata. 'In all ordinary motions it is in the discretionary power of the court hearing and denying a motion to grant leave for its renewal, and "this discretion will not be interfered with, except in cases of palpable abuse." [Citations.] The court can permit renewal of a motion even though it has been previously denied on its merits [citations]; and, unlike the final determination of an action or proceeding by judgment, the decision on an ordinary motion is not res judicata and the court has jurisdiction to reconsider it.' [Citation.]" (Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 770.)
While res judicata does not apply, Code of Civil Procedure section 1008 does provide some analogous protection against repetitive motions. Wright, however, has not relied on this aspect of Code of Civil Procedure section 1008, either below or in her briefs on appeal. Hence, we need not decide how it would apply here.
Finally, we note that, subject to some exceptions, "one trial court judge may not reconsider and overrule an interim ruling of another trial judge. [Citations.]" (In re Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1248.) This rule is not relevant here, because it was Judge Ochoa who overturned his own order reinstating the default judgment.
In sum, Wright has not shown any way in which the trial court erred by reversing itself.
IV
THE MERITS OF THE MOTION TO VACATE
Wright argues that the trial court erred by vacating the default judgment because the Robinsons were duly served.
A. Additional Factual and Procedural Background.
Wright maintains that on August 23, 2013, one Stephanie Cunningham personally served the Robinsons.
On September 3, 2013, Wright filed two sets of purported proofs of service. One set was defective, in that the forms were not signed. The other set was also defective, in that Wright used the Small Claims Court form, with "Small Claims" crossed out and "Civil" written in. Moreover, the form for Marie Robinson had a Small Claims Court case number. The form for Lloyd Robinson had the correct case number, but someone had traced over Cunningham's signature.
Wright claims that Cunningham originally signed the proof of service in blue ink, but Wright told her that it had to be signed in black ink, so Cunningham traced over her own signature in black ink. While this is plausible, it is completely outside the record, and we cannot consider it. In any event, it would not be dispositive; this proof of service was still invalid because it was on the wrong form. (See part IV.B, post.)
On October 4, 2013, when Wright filed a request for entry of the Robinsons' default, she filed amended proofs of service. This time, the proof of service for Lloyd Robinson was on the proper form and duly signed. However, there was no proper proof of service for Marie Robinson. There was only a hand-written declaration by Cunningham stating that she had served "the papers" on both of the Robinsons.
In August 2015, when Wright filed her motion to reinstate the default judgment, it included hand-written declarations by one Cheryl Steele and one Kelly Courtney stating that they saw Cunningham serve the Robinsons.
The Robinsons both submitted declarations stating that they were never served.
B. Discussion.
Under Code of Civil Procedure section 473, subdivision (b), the trial court has discretion to "relieve a party . . . from a judgment . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect."
"'A ruling on a motion for discretionary relief under [Code of Civil Procedure] section 473 shall not be disturbed on appeal absent a clear showing of abuse.' [Citation.] '"[T]hose affidavits favoring the contention of the prevailing party establish not only the facts stated therein but also all facts which reasonably may be inferred therefrom, and where there is a substantial conflict in the facts stated, a determination of the controverted facts by the trial court will not be disturbed."' [Citation.]" (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257-258.) "[T]rial courts are charged with the primary responsibility of ascertaining the credibility of affiants and the weight of their averments. [Citations.]" (Martin v. Cinelli (1960) 183 Cal.App.2d 509, 512.)
Here, the record contains no valid proof of service on Marie Robinson. Proof of service must be made using either Judicial Council form POS-010 (Code Civ. Proc., § 417.10, subd. (f)) or a typewritten or word-processed form that includes all of the same information. (Cal. Rules of Court, rule 2.150(a).) The Small Claims Court form and the hand-written declarations did not comply with these requirements.
This may be why the trial court entered a default judgment solely against Lloyd Robinson.
By contrast, the record does contain one valid proof of service on Lloyd Robinson. Lloyd Robinson testified, however, that he was not served. This presented a disputed factual question; resolving it is the trial court's job, not ours. "Since the affidavits and evidence presented upon the hearing of the motion to vacate the default judgment were sharply conflicting upon the question of whether or not respondent was personally served with summons as required by law, we cannot disturb the finding of the trial court in this respect whatever might be our feeling with respect to the weight of the evidence. [Citations.]" (Penland v. Goodman (1941) 44 Cal.App.2d 14, 16.)
The black letter of the law would seem to mean that, even when the only evidence consists of (1) the plaintiff's proof of service and (2) the defendant's flat denial, the trial court can choose to believe the defendant. One could argue that this makes it too easy for a defendant who is willing to lie to evade service. We need not decide this question, however, because here there was more evidence. Obviously, Wright had a great deal of difficulty in filing a valid proof of service; with regard to Marie Robinson, she never managed to do so. Thus, the trial court could reasonably question whether the one seemingly valid proof of service actually contained accurate information. By contrast, the Robinsons' denials were, at least, consistent.
While the hand-written declarations were not valid proofs of service, arguably the trial court could have viewed them as corroborating the one valid proof of service. However, it was not required to do so. None of them specified precisely what Cunningham served on the Robinsons; there was no evidence that the witnesses were even in a position to know this fact.
This is no pettifogging quibble. Cunningham could well have been serving the Robinsons with Small Claims Court papers. A small claims action between the parties was pending at the time. Moreover, as mentioned, Cunningham signed Small Claims Court proof of service forms — one even bearing a Small Claims Court case number.
Wright argues that the trial court should have disregarded Lloyd Robinson's testimony because he had committed perjury in this and other cases. She recounts a number of instances of his supposed perjury; however, the appellate record is insufficient to show that perjury actually occurred. In some instances, Wright admits this. She states that Robinson's "perjury is evidenced in [other] court cases — albeit I was not allowed crucial transcripts to prove this point . . . ." (Italics added.)
To take just one example, Wright asserts, without citation to the record, that Lloyd Robinson was prosecuted for perjury. Robinson asserts, likewise without citation to the record, that he was acquitted.
In any event, even assuming that Lloyd Robinson did commit perjury, that fact would not be dispositive. Once again, while the trial court could have disbelieved his testimony on this ground, it was not absolutely required to do so.
"[I]t is obviously a mistake to suppose that, because a witness may make inconsistent statements in the course of testimony given by him, such testimony is, in its entirety, to be disbelieved. The rule, 'Falsus in uno, falsus in omnibus,' does not mean that a witness' entire testimony must necessarily be disregarded or disbelieved because there may be found falsehood in certain parts of it. The rule merely means that, where the witness is found to have sworn falsely in a certain material part of his testimony, his entire testimony may for that reason be rejected. But no one will attempt to challenge the right of a jury or a judge, trying the facts, to believe and credit certain parts of the testimony of a witness who has been shown to have sworn falsely as to certain other material parts thereof. [Moreover], this rule is one which cannot well be invoked in a court of appeal on a review of the facts. It, like any other rule which may be resorted to by triers of facts for the purpose of weighing testimony and measuring the credibility of witnesses, is intended as a guide to those who must hear and see the witnesses and thus receive the evidence at first hand." (Brandt v. Krogh (1910) 14 Cal.App.39, 48.)
We therefore conclude that the trial court did not err by vacating Robinson's default and the default judgment.
V
JUDICIAL BIAS
Wright contends that Judge Ochoa was biased against her based on her pro. per. status.
She has forfeited any claim of bias by failing to bring a disqualification motion in the trial court. (Code Civ. Proc., § 170.3, subd. (c)(1); People v. Guerra (2006) 37 Cal.4th 1067, 1111, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) She has additionally forfeited any such claim by failing to file a prompt writ petition. An appellate court can review a claim of judicial bias only by writ, not by way of appeal. (Code Civ. Proc., § 170.3, subd. (d); People v. Lucas (2014) 60 Cal.4th 153, 304, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.)
In any event, Wright has not shown bias.
She contends that Judge Ochoa concluded that she had not properly served the Robinsons because he had a "preconceived idea" that pro. per.'s were not good at service. However, she does not cite any portion of the record supporting this (see Cal. Rules of Court, rule 8.204(a)(1)(C)), and we have not found any.
Wright also contends that Judge Ochoa showed bias by "instruct[ing]" her to get a lawyer. (Capitalization altered.) She claims, "This was not a suggestion . . . . I didn't have a . . . choice . . . ."
We need to place this contention in context. As mentioned, on April 1, 2015, while Wright was still in pro. per., she brought an ex parte application for reconsideration of the order vacating the default judgment. The trial court denied it, because the application was not supported by a declaration and because the court could not grant reconsideration ex parte. Wright asked, "Should I bring a motion?" The trial court replied, "I can't advise you, ma'am." When she continued to argue the merits of the ex parte application, the trial court commented, "Ma'am, it sounds to me like you really need to hire an attorney for this case because you clearly don't understand the process."
This was not an ultimatum. It was well-meaning (and indeed sound) advice. Wright had, in fact, demonstrated a lack of understanding of legal procedures. In a criminal case, a trial court not only can, but must warn the defendant about the "dangers," "hazards" and "disadvantages" of self-representation. (People v. Weber (2013) 217 Cal.App.4th 1041, 1058-1059.) If this is appropriate in a criminal case, when the defendant's very liberty is at stake, we see no reason why it is inappropriate in a civil case.
Wright also claims that Judge Ochoa showed bias by not letting her witnesses testify.
Once again, she is referring to the ex parte application that she presented on April 1, 2015. Apparently she brought witnesses with her to testify about the service of the summons and complaint on the Robinsons. However, "the general rule is that '[t]he trial court is empowered to determine motions upon affidavits, and has the discretion to refuse oral testimony.' [Citations.]" (In re Marriage of Nadkarni (2009) 173 Cal.App.4th 1483, 1499.) Ex parte applications, in particular, are normally supported by written, not oral testimony. Wright does not explain why she did not simply have her witnesses submit declarations. In any event, given the grounds on which the trial court denied the ex parte application, the witnesses' proposed testimony was irrelevant.
Wright may be claiming that Judge Ochoa was biased because he ruled against her erroneously. As discussed in part IV, ante, the trial court did not err. But in any event, "mere judicial error is not conclusive evidence of bias or grounds for disqualification . . . ." (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1231.) "'[A] trial court's numerous rulings against a party — even when erroneous — do not establish a charge of judicial bias, especially when they are subject to review.' [Citation.]" (People v. Farley (2009) 46 Cal.4th 1053, 1110.)
Finally, Wright contends that Judge Ochoa will be biased against her, because she has appealed. In the absence of a showing of an appearance of partiality, we trust trial courts to understand that being appealed is part of their job description. If our trust is misplaced, Wright will have the remedy in her own hands in the form of a motion for disqualification. (Code Civ. Proc., § 170.3, subd. (c)(1.) In any event, as this contention relates to hypothetical future events, not past events, it raises no issue that we can review.
VI
MISCELLANEOUS CONTENTIONS
We conclude by listing two matters that we are not going to address.
Wright briefly discusses the Seventh Amendment. She seems to be trying to head off any argument by Robinson that a default judgment violates his right to trial by jury. However, he has made no such argument. In any event, the Seventh Amendment does not apply in state courts. (Shaw v. Superior Court (2017) 2 Cal.5th 983, 993, fn. 8.)
Wright also alludes to a number of other cases involving her and the Robinsons: (1) proceedings in which Wright sought a restraining order against Lloyd Robinson; (2) a small claims action by Wright against the Robinsons; (3) a criminal prosecution of Wright, instigated by Lloyd Robinson; and (4) a criminal prosecution of Lloyd Robinson, instigated by Wright. The record in this case tells us very little about these other cases, and Wright has not shown that they relevant are in any way. (See also part IV, ante.)
VII
DISPOSITION
The order appealed from is affirmed. In the interests of justice, each side shall bear its own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.