McCray v. Bd. of Directors, United Services Automobile Assn. CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. 37-2010-00097606-CU-PA-CTL
- Trial judge
- Lorna Alksne
- Outcome
- dismissed — Appeal dismissed.
- Area
- civil
- Panel
- Alex C. McDonald (author), O'Rourke, Cynthia Aaron
Analysis
The trial court granted defendants' ex parte application to vacate a clerk's entry of default and set a hearing on a motion to quash service. The Court of Appeal dismissed the appeal because an order vacating a default judgment is not appealable under California law.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order granting defendants' ex parte application to vacate a clerk's entry of default and set a hearing on a motion to quash service of summons.“We conclude McCray's purported appeal from the order granting defendants' motion to vacate the clerk's entry of default must be dismissed.” | unclear | not reached | agree with court The appellate court determined that the order was not appealable as a matter of law, rendering the merits of the trial court's decision irrelevant to the disposition of the appeal. |
Authorities
- relied: Veliscescu v. Pauna (1991) 231 Cal.App.3d 1521 — No appeal lies from an order granting a motion to vacate a default upon which no default judgment has been entered.
- relied: Winter v. Rice (1986) 176 Cal.App.3d 679 — The court has no power to make appealable an order which is nonappealable.
- relied: Misic v. Segars (1995) 37 Cal.App.4th 1149 — An order granting a defendant's motion to vacate a clerk's entry of default is not appealable.
- relied: Lester v. Lennane (2000) 84 Cal.App.4th 536 — An appellant's opening brief is required to explain why the order appealed from is appealable.
The appellate opinion: sound — The opinion is procedurally sound because it correctly applies the well-established rule that orders vacating defaults are not appealable, citing binding authority. It also correctly notes the appellant's failure to meet the burden of demonstrating appealability as required by court rules.
How this analysis was made · dispute it
unusual dispositionThe trial court granted defendants' ex parte application to vacate a clerk's entry of default (on which no default judgment had been entered) and to set a hearing on their motion to quash service of summons. The Court of Appeal granted defendants' motion to dismiss, holding the order was nonappealable under Code of Civil Procedure section 904.1 and settled case law, and awarded defendants costs on appeal.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order granting defendants' ex parte application to vacate the clerk's entry of default and set a hearing on the motion to quash service of summons“An order granting a defendant's motion to vacate a clerk's entry of default is not appealable.” | unclear | not reached | agree with court The appellate court did not review the merits of the order because it concluded the order is not appealable; no default judgment had been entered, and section 904.1 does not list an order vacating a clerk's default as appealable. Veliscescu and Misic directly support dismissal, and appellant failed to address appealability as rule 8.204(a)(2)(B) requires. The court's threshold appealability analysis is correct, so the merits were properly not reached. |
Authorities
- relied: Veliscescu v. Pauna (1991) 231 Cal.App.3d 1521 — No appeal lies from an order granting a motion to vacate a clerk's entry of default where no default judgment has been entered; section 904.1 does not make such an order appealable.
- relied: Misic v. Segars (1995) 37 Cal.App.4th 1149 — An order vacating a default on which no judgment has been entered is not appealable.
- relied: Winter v. Rice (1986) 176 Cal.App.3d 679 — An appellate court has no power to make appealable an order that is nonappealable.
- relied: Lester v. Lennane (2000) 84 Cal.App.4th 536 — An appellant's opening brief must explain why the order appealed from is appealable.
The appellate opinion: sound — The opinion correctly applies the settled rule that an order vacating a clerk's default, absent a default judgment, is not among the appealable orders in section 904.1, citing directly on-point authority. It also properly notes appellant's failure to address appealability as rule 8.204(a)(2)(B) requires, and the dismissal follows necessarily.
Opinion
Filed 8/9/13 McCray v. Bd. of Directors, United Services Automobile Assn. CA4/1 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
EMANUEL MCCRAY, D061921
Plaintiff and Appellant, v. (Super. Ct. No. 37-2010-00097606-CU-PA-CTL) BOARD OF DIRECTORS, UNITED SERVICES AUTOMOBILE ASSOCIATION et al., Defendants and Respondents.
APPEAL from an order of the Superior Court of San Diego County, Lorna Alksne, Judge. Appeal dismissed.
Emanuel McCray, in pro. per., for Plaintiff and Appellant.
Daniels, Fine, Israel, Schonbuch & Lebovits, Maureen M. Michail and Bernadette C. Brouses for Defendants and Respondents. Plaintiff Emanuel Cray purports to appeal from an order entered by the trial court on April 18, 2012 (the order). The order granted defendants' ex parte application to (1)
vacate a clerk's entry of default against them, and (2) set a hearing on defendants' motion to quash service of summons of McCray's First Amended Complaint.
In their brief and motion to dismiss the appeal, defendants contend the order is not appealable. An order granting a defendant's motion to vacate a clerk's entry of default is not appealable. The court in Veliscescu v. Pauna (1991) 231 Cal.App.3d 1521 explained:
"Established California decisional law provides that no appeal lies from an order granting a motion to vacate a default upon which no default judgment has been entered. [Citations.] Also, Code of Civil Procedure section 904.1, which contains a lengthy list of appealable orders and judgments, does not allow an appeal to be taken from an order granting a defendant's default relief motion. In the present case, defendant's default was entered by the clerk of the superior court on April 6, 1988. However, no default judgment was ever entered. As Division Seven of this appellate district noted in Winter v. Rice [(1986) 176 Cal.App.3d 679, 683] '[T]his court has no power to make appealable an order which is nonappealable. [Citation.]' Accordingly, plaintiff's purported appeal from the order granting defendant's motion to vacate entry of default must be dismissed." (Id. at pp. 1522-1523, fn. omitted.)
Other courts are in accord with Velicescu (see, e.g., Misic v. Segars (1995) 37 Cal.App.4th 1149, 1154), and McCray has made no effort to cite any contrary authority.
Indeed, an appellant's opening brief is required to explain why the order appealed from is appealable (see Cal. Rules of Court, rule 8.204(a)(2)(B); Lester v. Lennane (2000) 84 Cal.App.4th 536, 556), and McCray has done so in neither his opening brief nor his response to defendants' motion to dismiss the appeal. We conclude McCray's purported 2 appeal from the order granting defendants' motion to vacate the clerk's entry of default must be dismissed.
DISPOSITION
Defendants' motion to dismiss the appeal from the order of April 18, 2012, is granted, and the appeal is hereby dismissed. Defendants are entitled to recover costs of proceedings in this court.
McDONALD, Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
Cites, in this corpus
- Lester v. Lennane C030662, C031941, C032406 · 2000-10-31
- Misic v. Segars B080663 · 1995-08-15
- Veliscescu v. Pauna B050647 · 1991-07-01
- Winter v. Rice B012267 · 1986-01-15