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Court of Appeal, Fifth District, California.

EVA LO, Plaintiff and Respondent, v. BOB WILSON, Defendant and Appellant.


Decided: January 19, 2011

Bob Wilson, in pro. per., for Defendant and Appellant. Swanson O'Dell, Seth N. O'Dell, Jeremy D. Swanson and Jamie R. Long, for Plaintiff and Respondent.



Respondent Eva Lo contracted with appellant Bob Wilson, doing business as Creative Environments, to set up a mobilehome on Lo's lot in California City. Lo paid Wilson $70,000.   Dissatisfied with Wilson's work, Lo hired another contractor to finish the job and sued Wilson for breach of contract.   The parties stipulated that the amount of special damages, if liability were found, would be $23,710, but disagreed as to whether Wilson was liable for the additional work that was needed to bring Lo's property into compliance with applicable code and habitability standards.   In a nonjury trial, the court found Wilson liable and awarded Lo $23,710 in damages plus $6,322.67 in interest for a total judgment of $30,032.67.

Appellant's Contentions

Wilson, who represented himself in the trial court and who again represents himself on his appeal to this court, contends that the trial court erred in denying his motion for judgment notwithstanding the verdict.   As we shall explain, appellant's contention lacks merit because a court cannot grant a motion for judgment notwithstanding the verdict in a case in which there was no jury verdict.   He also contends that the court made various erroneous rulings before and during trial, but his assertions are conclusory and are unaccompanied by any showing of actual and prejudicial error.   We will affirm the judgment.

Any attempt we might make to summarize, even briefly, the evidence presented at trial would be hampered by the fact that appellant has not included in the record on appeal a transcript of the testimony presented at trial.   From the court clerk's minutes in the clerk's transcript on appeal we can discern that the witnesses who testified for respondent were persons named Todd Randall, Glen Zide and Arthur Pratti, and respondent herself.   Respondent also called appellant as a witness pursuant to Evidence Code section 776.   Defense witnesses were appellant himself and a man named Allan Headley.   We do not know what any of these witnesses testified to because we do not have their testimony.   The minutes show that after the completion of trial testimony the court gave the parties a week to file written briefs before the court would render its decision.   Respondent's trial court brief describes witnesses Randall and Zide as her “expert witnesses” and describes Randall as “an expert in ‘setting up’ mobile homes.”   It describes defense witness Headley as “an employee of” appellant.

Appellant's answer to respondent's first amended complaint stated in part “[Wilson] agrees that a written contract was executed by [Lo] on 6/24/06 (6/21/06 by [Wilson] ) and that an accurate copy of that agreement is attached as Exhibit A, and admits contract (exhibit A) and dates that both parties signed it, as stated above to be TRUE and correct.”   The written contract attached as exhibit A to respondent's first amended complaint was a one-page document entitled “PROPOSAL AND ACCEPTANCE.”   It is dated “6/21/06” and contains a signature appearing to read “Robert Wilson.”   At the bottom of the page is a paragraph entitled “Acceptance of Proposal,” next to which is a signature reading “Eva Lo” and a “Date of Acceptance” reading “6-24-06.”   There are 10 enumerated items listed in the document, the first of which reads “EXCAVATE SITE - PIT SET - SET UP HOME - FINISH INTERIOR.”

The trial court's statement of decision stated “[t]his ruling is based on the written, signed contract, which both parties stipulated to be the true and correct original contract, and not on any subsequent unsigned documents.”   It expressly noted that the parties had “stipulated that the amount of special damages, if liability was found, was $23,710.00” and that “[Wilson] disputed that he was liable for the damage.”   It then stated in pertinent part:

“3. The court finds as follows:

“a. Based on the testimony of all witnesses and the documents provided, [Wilson] had a duty, as part of his performance under the original contract, to level and properly support the mobile home, regardless of any work performed by a previous workman.  [Wilson] held himself out as a ‘Manufactured Home Specialist’ and was aware that the prior contractor was unlicensed and that there were problems with the work the prior contractor performed.  [Wilson] solicited [Lo].

“b. The damages, based on the credible testimony of properly qualified expert witnesses, to the property were created by improper leveling and supporting of the mobile home as well as faulty and incomplete workmanship by ․ Wilson and his employees.

“c. Furthermore, ․ Wilson was on notice, at the commencement of the contract, that there had been problems with the previous work done and that all work would need to be checked against industry standards.”


I.  Standard of Review

This appeal requires us to revisit and restate some basic, fundamental principles of appellate review of a trial court judgment.


“ ‘A judgment or order of the lower court is presumed correct.   All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.   This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ ”  (Denham v. Superior Court (1970) 2 Cal.3d 557, 564;  accord, Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.)

“ ‘It is well settled that all presumptions and intendments are in favor of supporting the judgment or order appealed from, and that an appellant has the burden of showing reversible error, and that, in the absence of such showing, the judgment or order appealed from will be affirmed.’  [Citations.]”  (Walling v. Kimball (1941) 17 Cal.2d 364, 373, quoting Hibernia Sav. etc.   Soc. v. Ellis Estate Co. (1933) 132 Cal.App. 408, 412;  accord, Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 261.)

“All presumptions indulged in are in favor of the regularity of the judgment and proceedings upon which it is based, hence it devolves upon an appellant to affirmatively show the existence of the error upon which he asks for a reversal.”  (Scott v. Hollywood Park Co. (1917) 176 Cal. 680, 681;  see Dahlberg v. Dahlberg (1927) 202 Cal. 295, 297.)

“ ‘ “[E]rror must be affirmatively shown.” ’ ”  (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.)  “The burden rests upon the party complaining not only to show error but also to show that the error is sufficiently prejudicial to justify a reversal.”  (Coleman v. Farwell (1929) 206 Cal. 740, 741.)

“No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”  (Cal. Const., art.   VI, § 13;  see also Code Civ. Proc., § 475.)   A “ ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.”  (People v. Watson (1956) 46 Cal.2d 818, 836;  see Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800;  accord, Elsner v. Uveges (2004) 34 Cal.4th 915, 939.)  “We have made clear that a ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.”  (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715;  accord, Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682.)   This “so-called Watson standard applies generally to all manner of trial errors occurring under California law, precluding reversal unless the error resulted in a miscarriage of justice.”  (Cassim v. Allstate Ins. Co., supra, at p. 801;  see also Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)   Thus, “[a]lthough the Watson standard is most frequently applied in criminal cases, it applies in civil cases as well.”  (Cassim v. Allstate Ins. Co., supra, at p. 801.)

Second:  “When an appellant decides to represent himself in propria persona, ‘he is entitled to the same, but no greater, consideration than other litigants and attorneys.  [Citations.]’ ”  (Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193;  accord, Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638, disagreed with on another ground in Dumas v. Stocker (1989) 213 Cal.App.3d 1262, 1269, fn. 13;  Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125.)  “ ‘[T]he in propria persona litigant is held to the same restrictive rules of procedure as an attorney.’ ”  (Bianco v. California Highway Patrol, supra, at pp. 1125-1126;  see also First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1.) This holds true both in the appellate courts (see Bistawros, supra, at p. 193), and in the trial courts.  “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 v. Campbell (1994) 8 Cal.4th 975, 985.)


“When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.   If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.  [Citations.]”  (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)

Substantial evidence is evidence “ ‘of ponderable legal significance, ․ reasonable in nature, credible, and of solid value.’  [Citations.]”  (Id. at p. 873.)  “When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.”  (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429;  see Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571.)   An appellant's burden to affirmatively demonstrate error, when coupled with the substantial evidence rule, leads to the “elementary and fundamental” conclusion that when an appellant “has elected to appeal on the clerk's transcript alone, so that none of the evidence produced in the trial court is before us ․ [¶] ․ the appellate court must conclusively presume that the evidence is ample to sustain the findings․”  (Kompf v. Morrison (1946) 73 Cal.App.2d 284, 286.)

II. The Court Did Not Err in Denying Appellant's Motion for Judgment Notwithstanding the Verdict

A “verdict” is “[t]he formal decision or finding made by a jury, impaneled and sworn for the trial of a cause, and reported to the court (and accepted by it), upon the matters or questions duly submitted to them upon the trial.”  (Black's Law Dict. (6th ed.1990) p. 1559, col. 2.) Sections 600 through 630 of the Code of Civil Procedure pertain to trial by jury.   Section 629 provides in pertinent part that “[t]he court, before the expiration of its power to rule on a motion for a new trial, either of its own motion, ․ or on motion of a party against whom a verdict has been rendered, shall render judgment in favor of the aggrieved party notwithstanding the verdict whenever a motion for a directed verdict for the aggrieved party should have been granted had a previous motion been made.”  (See also Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1154;  Wegner et al., Cal. Practice Guide:  Civil Trials and Evidence (The Rutter Group 2010) ¶¶ 12:322 and 12.323, p. 12-66.1 [motions for directed verdict].)

“The trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict.  [Citations.]  The trial judge cannot weigh the evidence [citation], or judge the credibility of witnesses.  [Citation.]  If the evidence is conflicting or if several reasonable inferences may be drawn, the motion for judgment notwithstanding the verdict should be denied.  [Citations.]  ‘A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict.   If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.’  [Citation.]”  (Hauter v. Zogarts (1975) 14 Cal.3d 104, 110;  accord, Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.)

An appellate court reviewing a trial court's denial of a motion for judgment notwithstanding the verdict applies the same test utilized by the trial court-whether there is substantial evidence to support the jury's verdict.   (Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687, 703;  see also Sweatman v. Department of Veterans Affairs, supra, 25 Cal.4th at p. 68;  Wegner et al., Cal. Practice Guide:  Civil Trials and Evidence, supra, at ¶ 18:93, p. 18-24.)

Here, the trial court did not err in denying Wilson's motion for judgment notwithstanding the verdict because there was no verdict.   Wilson was the defendant in a nonjury trial.  “In order that the court may have jurisdiction to enter a judgment notwithstanding the verdict (Code Civ. Proc., § 629) there must be a verdict.”  (Mish v. Brockus (1950) 97 Cal.App.2d 770, 776;  see 7 Witkin, Cal. Procedure (5th ed.   2008) Trial, § 436, p. 508.)

The trial court appears to have generously treated Wilson's motion for judgment notwithstanding the verdict as a motion for a new trial, and then denied the motion for a new trial.   In this manner, the court could determine whether there was substantial evidence to support its decision in favor of Lo. We are not obligated to be so generous (see Bistawros v. Greenberg, supra, 189 Cal.App.3d 189), but even if we were and we were to treat Wilson's argument on appeal as a contention that the trial court erred in denying his motion for a new trial, Wilson fares no better.  Code of Civil Procedure section 657 provides in pertinent part:

“The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:  [¶] ․ [¶] 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.”

A decision is “against law” within the meaning of section 657 when the decision is not supported by substantial evidence.  (McCown v. Spencer (1970) 8 Cal.App.3d 216, 228-229;  Fergus v. Songer (2007) 150 Cal.App.4th 552, 567.)   When we undertake this review, or attempt to, we are left with the “elementary and fundamental” conclusion that because we do not have before us the evidence that was presented to the trial court, “the appellate court must conclusively presume that the evidence is ample to sustain” the findings of the trial court.  (Kompf v. Morrison, supra, 73 Cal.App.2d at p. 286.)

III. Appellant's Other Contentions

Appellant makes conclusory assertions that the trial court committed various “trial errors,” but fails to call our attention to anything in the record on appeal to demonstrate these purported errors actually occurred.   His argument that the court erred in ruling in favor of respondent because her testimony “is not evidence that is ․ credible” demonstrates a misunderstanding of the substantial evidence rule.  (See Bowers v. Bernards, supra, 150 Cal.App.3d at pp. 873-874.)   Similarly, he argues that the court erred in ruling on various pretrial motions he made, but fails to explain how these rulings, whether correct or not, had any effect whatsoever on the ultimate judgment.   “The burden rests upon the party complaining not only to show error but also to show that the error is sufficiently prejudicial to justify a reversal.”   (Coleman v. Farwell, supra, 206 Cal. at p. 741.)


The judgment is affirmed.   Costs on appeal are awarded to respondent.



LEVY, Acting P.J.