Filed 11/10/14 Young v. Taunton CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


KELE YOUNG,

     Plaintiff and Appellant,                                          G050077

         v.                                                            (Super. Ct. No. CIVVS1104820)

STEPHANIE TAUNTON,                                                     OPINION

     Defendant and Respondent.



                   Appeal from an order of the Superior Court of San Bernardino County,
John P. Vander Feer, Judge. Affirmed.
                   Kele Young, in pro. per., for Plaintiff and Appellant.
                   No appearance for Defendant and Respondent.
              Kele Young appeals from an order after the trial judge denied her motion to
vacate and set aside an order entered after a different trial judge concluded Young failed
to meet her burden of proving Stephanie Taunton made a credible threat of violence
justifying a permanent restraining order. Young argues both trial judges erred. Taunton
did not file a respondent’s brief. Young’s contentions are meritless, and we affirm the
order.
                                          FACTS
              On September 1, 2011, Young filed a request for an order to stop Taunton’s
harassment. Young is the owner of Magic Jungle, Inc., a wildlife preserve. Taunton is
the operator of Bow Wow Productions and Hesperia Zoo. In her request, Young stated
that on August 31, 2011, Taunton made a credible threat of violence against her and the
animals at her wildlife preserve.
              Young and Taunton were present at a hearing on September 2, 2011.
Young stated Taunton called her and said, “‘Well, you fucked with the wrong people.
You pissed off the wrong people.’ . . . ‘You think you’ve never had any problems out at
your facility? Well, you wait and see what’s going to happen to you now, and you
fucking wait and see what’s going to happen to all those fucking animals.’” Relying on a
United States Department of Agriculture (USDA) consent decision and order from
May 2008 against Taunton, Young stated her animals were threatened. The USDA
issued its May 2008 order after inspections established Taunton violated the Animal
Welfare Act (7 U.S.C. § 2131 et seq.), and federal regulations (9 C.F.R. § 1.1 et seq.) at
her facility. Taunton said she called Young and asked her why she was distributing the
USDA’s inspection reports to newspapers and colleagues. Taunton admitted she accused
Young of not operating “‘a real sanctuary,’” which she admitted was a mistake. But
Taunton claimed she did not threaten Young, raise her voice at her, or swear at her.
              The trial court, Judge Steve Malone, concluded there was a credible threat
of violence and issued a temporary order prohibiting Taunton from harassing, contacting,

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or coming within 100 yards of Young, her home, place of employment, vehicle, and the
wildlife preserve. The court set a hearing for September 22, 2011, and granted Young a
fee waiver.
              On September 22, 2011, Commissioner Robert Fowler dismissed the matter
without prejudice concluding Taunton had not been served. That same day, Young
re-filed a request for an order to stop harassment. In her request, Young stated that on
August 31, 2011, and September 20, 2011, Taunton and her associates made credible
threats of violence via telephone and text message against her and the animals at her
wildlife preserve. She also stated rattlesnakes had been set free on her property.
              At a hearing before Judge Gilbert G. Ochoa on September 26, 2011, Young
was present. Taunton was not present but was represented by counsel. A transcript of
this proceeding is not part of the record before us but we have the minute order from that
date. The trial court concluded there was a credible threat of violence and issued a
temporary order prohibiting Taunton from harassing, contacting, or coming within
100 yards of Young, her home, place of employment, and vehicle; the wildlife preserve
was crossed out. The court set a hearing for October 13, 2011, but this time denied
Young a fee waiver. Young was later granted a waiver of court fees and costs.
              On October 13, 2011, the trial court granted Taunton’s counsel request for a
continuance because Taunton had been served that day. The matter was continued to
October 21, 2011. Five days later, Taunton filed an answer to the request for a temporary
order.1 On October 21, 2011, when both Young and Taunton were present, Young’s
counsel requested a continuance to review Taunton’s answer. Taunton objected. The
trial court granted the request and continued the matter to November 1, 2011.




1            The register of actions shows Taunton filed an answer, but the copy of the
answer included in the clerk’s transcript is not file stamped.


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              Trial was held over two days on November 1 and 3, 2011, before
Judge Ochoa. A transcript of those proceedings is not part of the record before us but we
have the minute orders from those dates. Both Young and Taunton were present, and
Taunton was represented by counsel. Young and Taunton both testified and offered
numerous exhibits. Taunton presented two witnesses to testify on her behalf. The trial
court ruled Young did not satisfy her burden of proof. Taunton’s counsel made a motion
for attorney fees, and the trial court heard and considered argument. The court ordered
Young to pay $250 in attorney fees and no court costs. On November 29, 2011, in an
order after the hearing on civil harassment, the trial court found “defendant [sic] did not
meet her burden of proof[]” and ordered Young to pay attorney fees in the amount of
$250. According to Young’s civil case information statement, notice of entry of
judgment was served on January 24, 2012. That notice of entry of judgment is not part of
the record on appeal and is not reflected in the register of actions.
              On April 30, 2012, Young filed a motion to vacate and set aside the prior
November 2011 order, or alternatively to vacate and set aside the order pursuant to Code
of Civil Procedure section 473, subdivision (b).2 The motion was supported by Young’s
declaration and numerous exhibits. Young argued “a trial should be held on all of the
merits in this matter[]” because Taunton inflicted “fraud and willful surprise” on her.
Young was ultimately granted a fee waiver.
              Six weeks later, Young filed an amended motion to vacate and set aside the
prior November 2011 order, or alternatively to vacate and set aside the order pursuant to
section 473, subdivision (b), and principles of equity. The motion was again supported
by Young’s declaration and numerous exhibits. The gravamen of the motion was that
Taunton engaged in fraud and surprise by representing she had not been served with the
order to stop harassment and presenting witness testimony at trial that she did not


2             All further statutory references are to the Code of Civil Procedure.

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previously present at the hearings on the temporary orders. A couple weeks later, Young
filed a request for judicial notice and a statement of non opposition to the amended
motion to vacate and set aside the order.
              The trial court, Judge John P. Vander Feer, held a hearing on July 9, 2012,
where both Young and Taunton appeared in propria persona. A transcript of that
proceeding is part of the appellate record. The trial court recounted the matter’s
procedural history, including the court trial in November 2011, and stated there was no
basis for him to set aside Judge Ochoa’s order. Young argued Taunton made a credible
threat of violence against her that resulted in two temporary restraining orders. She
added that Taunton blatantly violated the temporary restraining order. She claimed
Judge Ochoa did not afford her a fair adversarial hearing in part because Taunton
ambushed her and offered witness testimony. She asserted the attorney fees award was
completely egregious. After the court stated the superior court is not a reviewing court
and there was no legal basis for him to set aside another superior court judge’s ruling,
Young cited to section 473, subdivision (b), and principles of equity for extrinsic fraud
and repeated her arguments. The court denied Young’s motion to vacate and set aside the
judgment and order, explaining there was no legal basis for the court to grant relief.
              On August 30, 2012, Young filed a notice of appeal. She appealed from
both of the following: (1) the trial court’s November 3, 2011, order denying her request
for a permanent restraining order; and (2) the trial court’s July 9, 2012, order denying her
request to vacate and set aside the judgment and order.
              Before this matter was transferred from the Court of Appeal,
Fourth District, Division Two to this court by order on April 28, 2014, that court filed an
order dated October 10, 2012, dismissing the appeal from the November 3, 2011, order as
untimely. The order directed Young to file a letter brief explaining why the July 9, 2012,
order denying her motion to vacate and set aside the order is an appealable order. Young
filed a memorandum arguing an order denying a motion to vacate a default judgment is

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an appealable order (§§ 663, 904.1), an order under section 473 is an appealable order,
and an order awarding attorney fees is appealable.
                                      DISCUSSION
I. Appealable Order?
              “‘While a denial of a motion to set aside a previous judgment is generally
not an appealable order, in cases where the law makes express provision for a motion to
vacate such as under . . . section 473, an order denying such a motion is regarded as a
special order made after final judgment and is appealable under . . . section 904.1,
subdivision (b) [see now § 904.1, subd. (a)(2)].’” (Generale Bank Nederland v. Eyes of
the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1394.) Additionally, “An order denying a
motion to vacate a judgment and to enter a new judgment pursuant to . . . section 663 is
appealable.” (Norager v. Nakamura (1996) 42 Cal.App.4th 1817, 1819, fn. 1.)
              Here, Young’s motions to vacate referenced only section 473,
subdivision (b). In her memorandum to the Court of Appeal, Fourth District,
Division Two, Young argued a motion to vacate pursuant to sections 663 and 904.1, is an
appealable order, suggesting her motion was a section 663 motion. (Remington v. Davis
(1951) 108 Cal.App.2d 251, 253 [§ 663 motion to vacate applies to final judgment].)
Alternatively, she asserted a denial of a section 473, subdivision (b), motion is an
appealable order.
              With respect to Young’s claim her appeal is from the denial of a section
663 motion, we disagree. First, Young’s motions were based on section 473, subdivision
(b), not section 663. Second, a section 663 motion would be untimely because that
motion applies to final judgments. (Simac Design, Inc. v. Alciati (1979)
92 Cal.App.3d 146, 153 [§ 663 motion used when trial court draws incorrect conclusions
of law or renders erroneous judgment on basis of uncontroverted evidence distinguished
from new trial motion for sufficiency of evidence]; Remington v. Davis (1951)



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108 Cal.App.2d 251, 253 [§ 663 motion to vacate applies to final judgment].) The trial
court issued an order ruling in Taunton’s favor on November 29, 2011. Although the
notice of entry of judgment is not part of the record on appeal, in her civil case
information statement Young claims notice of entry of judgment was served on January
24, 2012. Young had 15 days from that date to file a section 663 motion. (§ 663a, subd.
(a)(2).) Young’s motion, which she now attempts to characterize as a section 663 motion
was not filed until April 30, 2012, far past the 15-day limit.
              As to section 473, subdivision (b), we conclude Young’s appeal from the
denial of her section 473, subdivision (b), motion was timely as it was made within
six months of the trial court’s order denying her motion to vacate and set aside the
judgment and order. However, as we explain below, that motion was deficient.
II. Motion to Vacate and Set Aside Judgment and Order
              Generally, a section 473, subdivision (b), motion seeks relief from
judgments obtained due to mistake, inadvertence, surprise, excusable neglect, or fraud.
(8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 145, p. 738
[§ 473, subd. (b), motion generally seeks relief from judgments, dismissals, or
stipulations entered into under voluntary agreements].) We review a trial court’s ruling
on a section 473, subdivision (b), motion for an abuse of discretion. (Zamora v.
Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257-258.)
              Young’s motion and opening brief are somewhat confusing but we discern
her arguments to be as follows: (1) Judge Ochoa erred in failing to issue a permanent
restraining order against Taunton prohibiting her from harassing Young and harming the
animals at her wildlife preserve after having been granted two temporary restraining
orders because Taunton made credible threats of violence; (2) Judge Ochoa erred in
allowing Taunton’s witnesses to testify at trial because they did not testify at the hearings
on the temporary restraining order; (3) Judge Ochoa maliciously denied her filing fee
waivers; and (4) Judge Ochoa abused his discretion in ordering her to pay unwarranted

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attorney fees. Relying on International Ins. Co. v. Superior Court (1998) 62 Cal.App.4th
784, and similar authority, she also complains Judge Vander Feer erred in failing to
conduct a full hearing on the merits. Neither contention has merit.
                With respect to Young’s assertions concerning Judge Ochoa, those issues
are not before us as the appeal from the November 3, 2011, was dismissed. Assuming for
the sake of argument we could review Judge Ochoa’s order denying her request for a
permanent restraining order, the record Young provided is inadequate to permit review of
that hearing as Young did not include transcripts of the proceedings on November 1 and
3, 2011. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [“It is well settled, of course,
that a party challenging a judgment has the burden of showing reversible error by an
adequate record”].) In her opening brief, Young provides a factual history of what
happened on those days. Young’s self-serving recollection of the proceedings though is
insufficient.
                As to her contention Judge Vander Feer failed to conduct a full hearing on
the merits, Young has not demonstrated Judge Vander Feer abused his discretion in
denying her motion. At the July 9, 2012, hearing before Judge Vander Feer, we agree
Young did not provide the court with any legal justification for granting the relief she
requested. Young essentially sought to reargue the merits of her civil harassment
restraining order before Judge Vander Feer after Judge Ochoa had previously concluded
Young failed to satisfy the clear and convincing burden of proof necessary to obtain the
order. (§ 527.6, subd. (i).) Judge Vander Feer was not presented with a true section 473,
subdivision (b), motion to vacate a judgment but essentially a motion for a new trial or
appeal of a lower court’s decision. Thus, Young failed to meet her burden of establishing
reversible error.




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                                   DISPOSITION
             The order is affirmed. As there has been no appearance for Respondent, no
costs will be awarded on appeal.


                                              O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



FYBEL, J.




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