Glaros v. Department of Transportation CA2/2 ( 2023 )

Filed 5/22/23 Glaros v. Department of Transportation 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
NICHOLAS GLAROS, B319249
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 19GDCV01085)
DEPARTMENT OF
TRANSPORTATION,
Defendant and Respondent.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Joel L. Lofton, Judge. Affirmed.
Nicholas Glaros, in pro. per., for Plaintiff and Appellant.
Erin Holbrook, Chief Counsel, Jerald M. Montoya, Deputy
Chief Counsel, Kirsten R. Bowman and Razmig Khayalian for
Defendant and Respondent.
_______________________________________
The Department of Transportation (Caltrans) acquired
land in South Pasadena to build an extension of the Long Beach
Freeway. After abandoning the freeway project, Caltrans offered
to sell a property to appellant Nicholas Glaros. The deal lapsed
when Glaros failed to secure financing. He then sued Caltrans.
The trial court sustained demurrers to Glaros’s fourth
amended complaint without leave to amend, entered judgment
for Caltrans, then denied Glaros’s motion to vacate the judgment.
The court’s denial of equitable relief was not an abuse of
discretion because Glaros did not show extrinsic fraud or
mistake. We affirm.
FACTS AND PROCEDURAL HISTORY
Acting in propria persona, Glaros filed a complaint in
August 2019 against Caltrans and California Housing Finance
Agency (CalHFA). His first amended pleading, in November
2019, asserted tort and contract claims. The court sustained
demurrers, gave Glaros leave to amend only his contract claim,
and dismissed CalHFA from the lawsuit. After he “experienced
an epiphany of greater comprehension” about the law, Glaros
made further amendments, including new tort claims. The court
gave him “one final opportunity” to state a claim in a fourth
amended complaint (FAC).
The FAC alleges that Glaros rents a home in South
Pasadena owned by Caltrans (the Property). Caltrans acquired
the Property in 1975 for $27,700, for the purpose of extending
State Route 710. It is a Craftsman home on a 11,836 square foot
lot. By 2018, the Property was appraised at over $1 million.
In 2016, Caltrans conditionally offered to sell the Property
to Glaros. To participate, he had to show low or moderate income
and qualify for a loan from a financial institution. Glaros was
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eligible for an affordable sales program, allowing him to try to
purchase the Property.
In March 2018, Glaros signed a Purchase and Sale
Agreement (PSA) for $135,231. It has a 120-day time limit to
close escrow, plus one 30-day extension, if requested. The PSA
“is not a financing agreement.” Instead, Glaros had to obtain
funds for the purchase within the time limits of the escrow;
failure to do so “will result in the cancellation of this Agreement.”
In signing the PSA, Glaros acknowledged that his purchase
is subject to Covenants, Conditions and Restrictions (CC&R’s),
under affordable sales program regulations. He agreed to be
bound by the CC&R’s, which limit encumbrances on the Property.
On resale, any appreciation in value would be divided between
Glaros and CalHFA. The CC&R’s state that the resale covenant
is “senior to any other instrument,” including lender liens.
Escrow began April 20, 2018, with closing scheduled for
July 10, 2018. Glaros obtained an offer of financing. Caltrans
required his lender to sign a Subordination Agreement accepting
the limitation on lender liens in the CC&R’s. It reads, in part, “A
judicial foreclosure of the Use and Resale Covenant shall result
in the lien of the Lender Documents on the Property being
extinguished.”
Glaros alleges that the Subordination Agreement was
“redundant” and the PSA was “never lawfully amended to include
[it].” In his brief, he writes that “there was no need for the
Subordination Agreement” because the CC&R’s “already
contained the necessary language” to satisfy state law.
Glaros’s lender initially agreed to sign the Subordination
Agreement. However, in August 2018, the lender refused to sign
it and withdrew its loan offer. Caltrans gave Glaros 30 days to
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acquire another loan. When Glaros failed to secure financing,
Caltrans cancelled the sale and refunded his deposit. This
lawsuit ensued.
Caltrans demurred to the FAC. At the hearing on May 28,
2021, the court noted that it previously rejected the tort claims,
so breach of contract is the sole remaining cause of action. Glaros
replied that the harm he suffered was “the result of a breach of
an obligation, not arising from contract.” Upon the court’s
questioning, Glaros confirmed that he was proceeding “not on a
breach of contract theory but essentially on a noncontractual
theory which is in tort,” namely concealment, misrepresentation,
and infliction of emotional distress. The court concluded that the
Subordination Agreement is consistent with the CC&R’s. It
sustained demurrers to the FAC without leave to amend.
In September 2021, Glaros sought reconsideration, arguing
that he did not cite the correct statute for his contract claim and
“never really comprehended the main purpose of hearings on
motions.” He asked the court to revoke its February 2021 ruling
eliminating tort claims from his third amended complaint,
arguing that they are “absolutely essential.” He sought leave to
file a fifth amended pleading and restart discovery.
Caltrans opposed the motion arguing that it was untimely;
Glaros’s misunderstanding of the law is not grounds for relief;
and Caltrans is immune to claims of fraud, deceit, concealment,
breach of fiduciary duty, and infliction of emotional distress. At a
hearing on December 3, 2021, Glaros confirmed that he sought
reconsideration of a February 2021 ruling on his third amended
complaint, despite filing the FAC after that ruling. The court
denied Glaros’s motion as untimely; further, he did not
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demonstrate that he is entitled to relief for excusable neglect or
mistake.
Undeterred, Glaros filed a motion on December 20, 2021,
asking to vacate (1) the February 2021 order sustaining
demurrers to his third amended complaint and (2) the May 2021
order sustaining demurrers to the FAC without leave to amend.
He asked to file a fifth amended complaint and restart discovery.
The court dismissed Glaros’s case and entered judgment for
Caltrans on January 4, 2022. On January 20, 2022, the court
denied Glaros’s most recent motion, deeming it a motion to vacate
the judgment. On March 7, 2022, Glaros appealed the order
made after judgment.
DISCUSSION
1. Appeal and Review
Denial of a motion to vacate a judgment is an appealable
postjudgment order. (Code Civ. Proc., § 904.1, subd. (a)(2);
Shapiro v. Clark (2008) 164 Cal.App.4th 1128, 1137.) We review
the order for abuse of discretion. (Rappleyea v. Campbell (1994) 8
Cal.4th 975, 981 (Rappleyea).) The order is presumed correct,
and appellant has the burden of showing abuse of discretion.
(McClain v. Kissler (2019) 39 Cal.App.5th 399, 413, 415.) The
test is whether the court exceeded the bounds of reason. (Anastos
v. Lee (2004) 118 Cal.App.4th 1314, 1318–1319.)
2. Equitable Power to Grant Relief
In his moving papers and brief, Glaros invokes the court’s
inherent equity powers as the basis for relief. He argues that
after the six-month deadline allowed by Code of Civil Procedure
section 473 lapses, he “may still be able to obtain equitable relief
based on extrinsic fraud or mistake.”
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Glaros is correct that a court may grant equitable relief.
However, “ ‘[W]hen relief under [Code of Civil Procedure] section
473 is available, there is a strong public policy in favor of
granting relief and allowing the requesting party his or her day
in court. Beyond this period there is a strong public policy in
favor of the finality of judgments and only in exceptional
circumstances should relief be granted.’ ” (Rappleyea, supra, 8
Cal.4th at pp. 981–982.) “The question is one of the court’s
equitable power. If the court could properly refuse to invoke that
power to vacate the order, its ruling and the ensuing judgment
must be sustained.” (Id. at p. 981.)
A party moving for equitable relief from judgment must
show extrinsic fraud or mistake, his reasonable reliance on it, the
existence of a meritorious defense, and reasonable diligence in
seeking relief. (Rappleyea, supra, 8 Cal.4th at p. 982.) The terms
“extrinsic fraud” and “extrinsic mistake” are interpreted broadly,
encompassing “almost any set of extrinsic circumstances which
deprive a party of a fair adversary hearing.” (In re Marriage of
Park (1980) 27 Cal.3d 337, 342; Hudson v. Foster (2021) 68
Cal.App.5th 640, 664 (Hudson).)
a. Extrinsic Fraud
Extrinsic fraud occurs when an adversary deprives a
litigant of notice of a hearing and an opportunity to present his
case. (Craney v. Low (1956) 46 Cal.2d 757, 759; Davis v. Davis
(1960) 185 Cal.App.2d 788, 793.) A common ground for relief
from extrinsic fraud is when a “party is induced not to appear,
relying on representations, in the context of a confidential
relationship, that his interests will be protected.” (Steven W. v.
Matthew S. (1995) 33 Cal.App.4th 1108, 1114.)
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“Fraud is extrinsic when a party is prevented from fully
participating in the proceeding or deprived of the opportunity to
present a claim to the court by the fraudulent conduct of another
party, as opposed to the moving party’s own negligence.
[Citations.] ‘The clearest examples of extrinsic fraud are cases in
which the aggrieved party is kept in ignorance of the proceeding
or is in some other way induced not to appear. [Citation.]’
[Citation.] Other examples include ‘concealment of the existence
of a community property asset, failure to give notice of the action
to the other party, and convincing the other party not to obtain
counsel because the matter will not proceed (and then it does
proceed).’ ” (Hudson, supra, 68 Cal.App.5th at p. 664.)
By this standard, Glaros’s claim for relief fails. There is no
proof that Glaros lacked notice of the demurrers. On the
contrary, he opposed them in writing and in person at hearings.
He presented his claims to the trial court, which repeatedly gave
him leave to amend. Caltrans and Glaros are landlord and
tenant: They do not have a confidential relationship that
compelled Caltrans to help Glaros. This is not comparable to
Hudson, supra, 68 Cal.App.5th at pages 662–667, where the
defendant conservator had a fiduciary duty to account for a
conservatee’s money.
No relief is available for intrinsic fraud. “Fraud is
generally considered intrinsic when a party had notice of the
action and an opportunity to present a case, but unreasonably
neglected to protect themselves from fraud or mistake involving
the merits of the proceeding.” (Hudson, supra, 68 Cal.App.5th at
p. 664.) Intrinsic fraud may consist of untruths, half-truths, and
deceitfully misleading affidavits, arguments and declarations
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from one’s adversary. (Beresh v. Sovereign Life Ins. Co. (1979) 92
Cal.App.3d 547, 553.)
Glaros argued below that “the State employees and
contractors, who worked together to injure Plaintiff were
employees or contractors of Caltrans.” He includes counsel for
Caltrans, who pleaded claims in the alternative or allegedly made
false claims. Glaros wrote that Caltrans had “a tactical strategy
for the direct purpose of delaying and diverting [his] attention.”
He has described intrinsic fraud.
Glaros believes Caltrans could have helped him—first with
his efforts to purchase the Property and later to prove his court
case. Caltrans had no duty to help him. Though Glaros may
have been confused or misled, it was not extrinsic fraud involving
notice or affecting his ability to appear and be heard. He fully
participated, even if he was unsure of the law or process.
b. Extrinsic Mistake
Extrinsic mistake occurs “when circumstances extrinsic to
the litigation have unfairly cost a party a hearing on the merits”;
for example, if “ ‘a mistake led a court to do what it never
intended.’ ” (Rappleyea, supra, 8 Cal.4th at p. 981.) In other
words, “ ‘ “it is not a mistake of the law, or an inadvertent
conclusion as to what the law is, but a mistake or inadvertence in
doing something not intended to be done.” ’ ” (Ibid.)
As described by our Supreme Court in Kulchar v. Kulchar
(1969) 1 Cal.3d 467, 471–472, extrinsic mistake is found when a
party becomes incompetent but no guardian ad litem is
appointed; a party mistakenly relies on another to defend or on
an attorney who is incapacitated to act; the court does what it
never intended; a party’s mistaken belief prevents proper notice
of the action; or a party is disabled when judgment is entered.
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Glaros’s papers and briefs do not show extrinsic mistake.
He is not incompetent or disabled at the time of judgment; he did
not rely on another or on an attorney who failed to act on his
behalf; and the court heard the parties’ arguments and intended
to make its rulings. Instead, Glaros made mistakes or reached
inadvertent conclusions as to what the law is. These are not
grounds for relief. (Rappleyea, supra, 8 Cal.4th at p. 981.)
3. Self-representation Does Not Affect the Outcome
Glaros emphasizes his status as a self-represented litigant.
He explained below that his defective pleadings were caused by
his misunderstanding of the law and legal procedures. He wrote
that he “has reached a point where he can begin to learn other
law matters pertaining to his suit which will be needful as his
case moves forward.”
The challenge of conducting legal research as a layperson is
considerable. But Glaros has not shown that the judgment was
caused by extrinsic fraud or mistake. (See Rappleyea, supra, 8
Cal.4th at p. 985 [“our focus is on the clerk’s and plaintiff’s
incorrect advice rather than on defendants’ ill-advised self-
representation”].) Glaros’s faulty research is not a basis for
equitable relief.
“[W]e make clear that mere self-representation is not a
ground for exceptionally lenient treatment. Except when a
particular rule provides otherwise, the rules of civil procedure
must apply equally to parties represented by counsel and those
who forgo attorney representation. . . . A doctrine generally
requiring or permitting exceptional treatment of parties who
represent themselves would lead to a quagmire in the trial
courts, and would be unfair to the other parties to litigation.”
(Rappleyea, supra, 8 Cal.4th at pp. 984–985.)
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The key point is that exercise of a court’s equitable powers
is available only upon a showing of extrinsic factors. (Advanced
Building Maintenance v. State Comp. Ins. Fund (1996) 49
Cal.App.4th 1388, 1395.) For two years, Glaros tried to state a
claim, without success. His mistakes were intrinsic.
4. Glaros Did Not Show a Meritorious Case
The court’s refusal to allow a fifth amended complaint was
not an abuse of discretion. A complaint “shall not be amended
more than three times” absent an offer of proof the defects can be
cured. (Code Civ. Proc., § 430.41, subd. (e)(1).) Glaros was not
able to cure the defects.
Caltrans is immune to Glaros’s claim that its employees
committed fraud or misrepresentation. (Gov. Code, § 818.8;
Chevlin v. Los Angeles Community College Dist. (1989) 212
Cal.App.3d 382, 390 [immunity to fraudulent concealment
claim].) Immunity attaches to common law claims for emotional
distress. (Gov. Code, § 815; Miklosy v. Regents of University of
California (2008) 44 Cal.4th 876, 899; Wassmann v. South
Orange County Community College Dist. (2018) 24 Cal.App.5th
825, 854 [emotional distress is a common law claim].)
Glaros did not state a claim for breach of contract. His
pleading shows he did not secure financing, a condition of the
PSA. His lender refused to sign the Subordination Agreement,
which Glaros alleged is “redundant” because its terms are in the
CC&R’s; however, the lender was not a party to the PSA or the
CC&R’s. To be bound by covenants in the CC&R’s, the lender
had to sign the Subordination Agreement, which (as to the
lender) was not redundant. Finally, Glaros told the court, before
it ruled on the FAC, that he was proceeding on tort theories, not
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on a breach of contract theory, thereby abandoning his contract
claim.
DISPOSITION
The order is affirmed. The parties to bear their own costs
on appeal.
NOT TO BE PUBLISHED.
KWAN, J.*
We concur:
ASHMANN-GERST, Acting P. J.
CHAVEZ, J.
*Judge of the Superior Court of Los Angeles County
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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