Filed 2/25/15 Walton v. Frost CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


MICHAEL JOHN WALTON,
         Plaintiff and Appellant,
                                                                     A136510
v.
JACK FROST,                                                          (Lake County
                                                                     Super. Ct. No. CV407601)
         Defendant and Respondent.


         Plaintiff Michael John Walton appeals from an order denying his motion to vacate
a judgment of nonsuit. Because we conclude the trial court did not abuse its discretion in
denying the motion, we affirm.
                              FACTUAL AND PROCEDURAL BACKGROUND
         Walton sued defendant Jack Frost in propria persona (pro. per.) for fraud and
trespass based on allegations that Frost deposited substantial quantities of dirt onto
Walton’s property in Clearlake. As set forth in the operative complaint, Walton alleged
that Frost had asked for his permission in 2007 to dump dirt onto Walton’s property from
an excavation on an adjacent lot. Frost allegedly told Walton that he would spread the
dirt out. According to Walton, Frost dumped approximately thirty loads of dirt onto
Walton’s property. The dirt purportedly contained substantial quantities of rock and was
not spread out by Frost. Walton asserted that Frost falsely represented he would spread
the dirt out and intended to deceive Walton by concealing the fact the excavated dirt
contained rock. Walton alleged the value of his property was greatly diminished as a
result of Frost’s acts.


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       The matter proceeded to trial before a jury in November 2011. After Walton
rested his case as plaintiff, Frost moved for nonsuit. Frost argued that Walton lacked
standing to sue because the subject property had been sold on August 21, 2009,
approximately ten days before Walton initially filed suit. Frost relied on trial exhibits
consisting of recorded deeds showing that Walton’s property, consisting of two adjoining
lots, had been sold by Lake County for a total of $1,800 at a public auction. Frost also
argued that the fraud claim failed as a matter of law because there was insufficient
evidence to show that Walton had detrimentally relied on any representations made by
him. In opposition to the motion for nonsuit, Walton asked the trial court to take judicial
notice of a bankruptcy petition he filed on August 20, 2009, the day before the property
was sold. He claimed the sale was void because the tax collector did not have authority
to sell his property after he filed for bankruptcy.
       The trial court granted the nonsuit and dismissed the jury. With regard to the
bankruptcy petition, the court noted that Walton’s bankruptcy presented issues that were
collateral to the question of whether Walton was the owner of the property at the time he
filed suit. In the court’s written order granting the motion for nonsuit, the court explained
that it granted the motion both because Walton lacked standing to pursue a trespass claim
and because Walton had not presented sufficient evidence in support of his fraud claim to
establish the element of detrimental reliance.
       Following entry of judgment, Walton filed a motion for new trial. Among other
things, he argued he had standing to sue as a property owner because the August 2009
sale of the property by Lake County was void as violative of the bankruptcy stay. He
also contended he was entitled to pursue an action for damages even though he no longer
owned the property. In addition, he argued that he had presented sufficient evidence
supporting a cause of action for fraud based upon concealment. The court denied
Walton’s motion for new trial. In the order denying the motion, the court noted that
Walton had sought judicial notice of his bankruptcy petition at the time of trial. The
court’s order states, in relevant part: “The court did not take judicial notice of such
document because it could not ascertain the authenticity or extent of the nature or status


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of such case. Additionally such collateral evidence does not provide the necessary proof
that the property is possessed by [Walton].”
       Walton appealed the judgment in case number A135342. This court dismissed the
appeal involuntarily on May 14, 2012, after Walton failed to timely procure the record on
appeal in compliance with the California Rules of Court.
       On May 9, 2012, while the appeal in case number A135342 was still pending,
Walton filed the motion giving rise to this appeal—a “motion for order relieving default”
in which he requested that the court vacate the judgment of nonsuit and grant him a new
trial (hereafter “motion to vacate the judgment”). He purported to base his motion to
vacate the judgment on Code of Civil Procedure1 section 473 and claimed that, as a result
of a mistake, he had failed to request a continuance at the time of trial so that he could
obtain a certified copy of his bankruptcy petition. He also claimed the judgment was
void on the ground the court was required to give effect to the bankruptcy stay and
thereby disregard the tax sale of his property.
       The court denied Walton’s motion to vacate the judgment. At the hearing on the
motion, the court observed that Walton had made the same arguments at trial and in a
motion for new trial, and that he was simply arguing that he did not anticipate something
that happened at trial. The court stated: “That’s not the type of thing that falls under
[section] 473. If that were true, then every case would be relitigated; every judgment
would be set aside under [section] 473 because you lost.” According to the court,
Walton’s remedy was to appeal the judgment and not to ask the trial court to vacate the
judgment based upon a purported “mistake” in the way Walton pursued the case at trial.
       After Frost served notice of entry of the order denying Walton’s motion to vacate
the judgment, Walton filed a timely appeal.




       1
        All further statutory references are to the Code of Civil Procedure.


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                                        DISCUSSION
1.     Appealability
       Frost contends the court’s denial of Walton’s motion to vacate the judgment is not
an appealable order. We disagree.
       “The denial of a motion to vacate a prior judgment or order is an order after final
judgment that affects the judgment and therefore can be appealable under certain special
circumstances.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal § 197, p. 273; see Code
Civ. Proc., § 904.1, subd. (a)(2).) Such an order may be appealable if (1) there is no
effective appeal from the judgment, (2) the appellant was not an original party to the
action, (3) the motion to vacate is authorized by statute, or (4) the motion seeks to vacate
a void judgment. (9 Witkin, supra, §§ 198–201 at pp. 274–278.)
       Here, Walton’s motion to vacate was authorized by statute. He based his motion
on section 473, subdivision (b) of the Code of Civil Procedure, which allows a party to
seek relief from a judgment taken against him or her through that party’s mistake,
inadvertence, surprise, or neglect, as long as the request is made within six months after
the judgment was entered. He also argued that the judgment was void. (See Code Civ.
Proc., § 473, subd. (d).) Consequently, under the circumstances presented here, the order
denying Walton’s statutory motion to vacate is appealable as an order made after final
judgment. (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1265–
1266 (Burnete).)
2.     No Abuse of Discretion in Denying Motion to Vacate Judgment
       Section 473, subdivision (b) provides in relevant part: “The court may, upon any
terms as may be just, relieve a party or his or her legal representative from a judgment,
dismissal, order, or other proceeding taken against him or her through his or her mistake,
inadvertence, surprise, or excusable neglect.” “It is clearly established that ‘[a] motion
for relief under section 473 is addressed to the sound discretion of the trial court and an
appellate court will not interfere unless there is a clear showing of abuse.’ ” (Stafford v.
Mach (1998) 64 Cal.App.4th 1174, 1180.)



                                              4
       In the trial court, Walton claimed his “mistake” was in failing to ask for a
continuance to permit time to present the court with a certified copy of his bankruptcy
petition. He also claimed there was “surprise” because he did not know Frost would rely
on the deeds to establish his lack of standing.
       As the appellate court explained in Burnete, supra, 148 Cal.App.4th 1262, errors
that a pro. per. litigant makes at trial as a result of inexperience or lack of familiarity with
the law generally do not justify relief under section 473. (Id. at pp. 1267–1270.) In
Burnete, the pro. per. plaintiff sought to vacate a judgment of nonsuit in a personal injury
action on grounds of mistake and excusable neglect. (Id. at p. 1264.) The appellate court
observed that the “errors” at trial resulted from the plaintiff’s lack of understanding of the
law. (Id. at p. 1267.) For example, the plaintiff was unable to present his medical expert
witness because he had failed to designate an expert, and due to inexperience, he was
unable to get photographs and medical records into evidence. (Ibid.) In affirming an
order denying the motion to vacate, the appellate court noted that pro. per. litigants are
held to the same standards as all other litigants and attorneys: “In other words, when a
litigant accepts the risks of proceeding without counsel, he or she is stuck with the
outcome, and has no greater opportunity to cast off an unfavorable judgment that he or
she would if represented by counsel.” (Ibid.)
       Here, as in Burnete, the “mistakes” Walton claims to have made at trial were
largely a product of the fact that he chose to represent himself. Even if he had been
represented by an attorney, the failure to request a continuance would not constitute
mistake or excusable neglect sufficient to vacate the judgment. Among other things,
there is no reason to believe the court would have granted a continuance request in the
middle of a jury trial in order to allow Walton to secure a certified copy of his bankruptcy
petition. (See Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th
1112, 1126 [trial continuances disfavored].) As the trial court observed at the time it
denied his new trial motion, even if Walton had authenticated his bankruptcy petition, it
would not have mattered. The relevant issue at trial was whether Walton owned or
possessed the property at the time he filed his trespass action. The evidence before the


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court confirmed that Walton did not own or possess the property. The fact that Walton
filed a bankruptcy petition before the sale of the property did not establish that he owned
the property. At most, it suggested he might have had legal grounds to challenge the sale
in an action against Lake County, which is not a party to this lawsuit. But the mere fact
Walton may have had some basis to challenge the sale in a collateral action against Lake
County does not alter the conclusion that Walton did not own the property at the time he
filed suit.2 Walton’s failure to request a continuance at trial is not the kind of mistake or
excusable neglect that section 473 was designed to remedy.
       On appeal, Walton focuses on two issues, neither of which bears upon whether the
judgment should be vacated under section 473 as a result of his mistake or excusable
neglect. First, he argues that he had standing to maintain a lawsuit even though he was
no longer the owner of the property. Second, he claims the trial court violated the
bankruptcy stay. These two legal issues were fully litigated in the trial court before the
filing of Walton’s motion to vacate the judgment.
       With regard to the standing issue, Walton argued from the outset that he could
recover damages even though he no longer owned the property. This issue was litigated
at trial and again in Walton’s new trial motion. The trial court rejected Walton’s
argument, concluding that he could not bring an action for trespass because he had
neither actual nor constructive possession of the property at the time he filed suit. (See
5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 695, p. 1020.) Like the standing
issue, Walton’s contention regarding the effect of the bankruptcy stay was considered and
rejected by the trial court even before he filed his motion to vacate the judgment. Walton
seems to be arguing that the court made a mistake in ruling against him, but that is not the
type of mistake section 473 addresses. If the trial court erred as a matter of law, Walton’s
remedy was to appeal from the judgment. Section 473 does not serve the purpose of
giving a party another bite at the apple to re-litigate issues already considered and
decided.

       2
       We do not suggest Walton has any valid basis to challenge the sale by Lake
County.

                                              6
       Insofar as Walton claims the judgment is void because the trial court purportedly
failed to honor the bankruptcy stay, he is mistaken. He relies on the principle that a
bankruptcy petition stays any action to enforce a lien on property of the bankruptcy
estate. However, the action below did not involve the enforcement of a lien against
Walton’s property. Indeed, the record on appeal discloses that the propriety of the tax
lien was the subject of a separate action between Walton and Lake County, which is not a
party to this lawsuit.3 The evidence before the trial court was that Walton no longer
owned the property. The sale transaction had already been consummated, and there was
nothing for the court to stay. Moreover, the automatic stay provision of federal
bankruptcy law does not apply to an action brought by the debtor, such as the action
instituted by Walton against Frost. (Shah v. Glendale Federal Bank (1996)
44 Cal.App.4th 1371, 1377–1378.) In short, the court did not violate the bankruptcy stay
or act in excess of its jurisdiction by considering evidence of the property sale as a
ground for granting a nonsuit in favor of Frost.
       We conclude there was no abuse of discretion in denying Walton’s motion to
vacate the judgment.
                                       DISPOSITION
       The court’s order of June 15, 2012, denying Walton’s “motion for order relieving
default” is affirmed. Frost shall be entitled to recover his costs on appeal.




       3
        In his motion to vacate the judgment, Walton asked the trial court to take judicial
notice of a separate action he filed against Lake County in which he sought to cancel the
tax liens that led to the sale of the property.


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                                _________________________
                                McGuiness, P.J.


We concur:


_________________________
Pollak, J.


_________________________
Jenkins, J.




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