Barker v. Di Lando CA1/2 ( 2020 )

Filed 11/23/20 Barker v. Di Lando CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
KENNETH BARKER,
Plaintiff and Appellant,
A159556
v.
ROBINSON DI LANDO, et al., (Contra Costa County
Super. Ct. No.
Defendants and Respondents.
MSC1901582)
Respondents Robinson Di Lando and Panda Restaurant Group, Inc.
have moved to dismiss the appeal of appellant Kenneth Barker on the ground
that he has appealed from a nonappealable order. Respondents also request
monetary sanctions on the ground that appellant has filed a frivolous appeal.
Because we conclude the trial court’s order vacating a default entered against
respondents was not appealable, we shall dismiss the appeal. However, we
will decline respondents’ request for sanctions.
BACKGROUND
This appeal, which appellant filed in propria persona, arises from an
action alleging discovery abuses (current action). The current action is
derived from a pending action (original action), in which appellant alleged
that he was injured after biting into a foreign object in food he had purchased
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at a Panda Express restaurant. (Barker v. Panda Restaurant Group, Inc.)
(Case No. C17-01774.)
In the current action, appellant filed a complaint for abuse of process
on August 2, 2019, challenging respondents’ allegedly overbroad subpoenas
for appellant’s medical records in the original action.
Respondents’ response to the complaint in the current action was due
on Friday, October 25, 2019. On October 25, respondents attempted to file a
demurrer to the complaint at the Contra Costa County Court Clerk’s Office.
However, the clerk’s office returned the demurrer, stating that the names of
the defendants must match the summons and complaint exactly. By the time
respondents learned the demurrer had been rejected, it was too late to correct
the caption the same day.
Early on the morning of Monday, October 28, 2019, appellant filed
separate requests against Robinson Di Lando and Panda Restaurant Group,
checking boxes requesting both entry of default and clerk’s judgment in the
current action, and also requesting “$5.000.000.00” in damages. On that
same date, the clerk checked a box on each of the request forms that stated,
“Default entered as requested . . . .” Later in the day, when respondents
again attempted to again file their demurrer with the names corrected, the
clerk’s office rejected the demurrer because defaults had already been entered
in the action.
On October 29, 2019, appellant attempted to file a clerk’s default
judgment, which was marked received, but was not filed. The court’s register
of actions contains a November 8, 2019 entry indicating that appellant’s
October 29 request for a clerk’s judgment could not be filed.
On November 7, 2019, respondents moved ex parte to vacate the
default and any clerk’s judgment entered on October 28. After the court
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denied the ex parte request, respondents filed a notice of motion to vacate the
default.
On November 12, 2019, appellant again attempted to file a clerk’s
default judgment, which was again marked received, but not filed. The
court’s register of actions contains a November 18 entry indicating that
appellant’s November 12 request for a clerk’s judgment could not be filed.
A January 31, 2020 entry in the court’s register of actions shows that a
hearing took place on respondents’ motion, and another entry states, “Default
is set aside on Robinson Di Lando, Panda Restaurant Group.”
Also on January 31, 2020, appellant filed a notice of appeal. On the
appeal form, he indicated that he was appealing from a January 31
“Judgment after court trial.”
On April 27, 2020, the court entered a formal order granting
respondents’ motion to vacate the defaults and any clerk’s judgment, which
stated: “As shown by the Register of Actions, the Clerk did not enter default
judgments in this case. However, to the extent the Requests for Entry of
Default entered by the clerk could be construed as entering default
judgments, they are set aside for the reasons set forth above. Additionally,
Clerk’s Judgments may not be entered in this tort action. [Citation.]”1
1 The court explained that respondents’ “papers established that their
responsive pleading was a court day late because they left out a middle initial
in Michael A. Di Lando’s name or a similar typographical error and the
clerk’s office refused to file their pleadings on the date they were presented.”
Based on respondents’ showing “that the typographical error was the result of
inadvertence, mistake or excusable neglect” and their “attorney’s declaration
of fault,” the court found that they were entitled to relief under Code of Civil
Procedure section 473, subdivision (b).
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DISCUSSION
Respondents (1) contend this appeal must be dismissed because
appellant has attempted to appeal from a nonappealable order, and
(2) request monetary sanctions, asserting that appellant has filed a frivolous
appeal.2
I. Appealability
As a general rule, an appeal may be taken from the final judgment
entered in a case. (Code Civ. Proc., § 904.1, subd. (a)(1).)3 In addition,
section 904.1 identifies interlocutory orders from which an appeal may be
taken. (§ 904.1, subds. (a)(3)-(a)(13).) However, an order granting a motion
to vacate a default is not included in this list as an appealable order.
Moreover, “[e]stablished 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.]” (Veliscescu v. Pauna (1991)
231 Cal. App. 3d 1521, 1522 (Veliscescu); accord, Misic v. Segars (1995)
37 Cal. App. 4th 1149, 1154 [“When a trial court grants a motion to vacate a
default, an appeal does not lie in the absence of entry of a default
judgment”].)
Here, although appellant indicated on his notice of appeal that he was
appealing from a judgment after court trial, the record shows that he is
attempting to appeal from the trial court’s order granting respondents’
motion to vacate the default that had been entered against them. Moreover,
2 We deny, as unnecessary to resolution of respondents’ motion,
appellant’s request for judicial notice of the facts that respondents have filed
“three similar demurrers in the superior court related to the original action,”
all of which were allegedly rejected by the trial court.
3All further statutory references are to the Code of Civil Procedure
unless otherwise indicated.
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although appellant checked boxes on a court form requesting both entry of
default and clerk’s judgment, the court’s register of actions states only that
“defaults were entered as requested.” There is no record of entry of a clerk’s
judgment and, when appellant subsequently filed two separate requests for a
clerk’s judgment, the requests were marked “received” and entries in the
court’s register of actions stated that they could not be filed. Finally, in its
April 27, 2019 order vacating the default, the trial court expressly found: “As
shown by the Register of Actions, the Clerk did not enter default judgments
in this case.” In an abundance of caution, the court also stated that to the
extent appellant’s requests for entry of default entered by the clerk “could be
construed as entering default judgments,” they were set aside. This
statement does not, however, alter the fact that the record contains no entry
of a clerk’s judgment, as the trial court stated.
Based on the evidence in the record described above, it is apparent that
the clerk entered a default only, that no clerk’s judgment was ever entered,
and that the order granting the motion to vacate the default is not
appealable. (See Veliscescu, supra, 231 Cal.App.3d at p. 1522.) For these
reasons, appellant’s purported appeal from that order must be dismissed.4
II. Sanctions
Respondents have requested monetary sanctions in the amount of
$5,530.00 for attorney fees incurred in preparation of their motion to dismiss.
They argue that “[a]ppellant’s appeal lacks all merit and is frivolous on its
face as there is no appealable judgment or order.” They also assert that the
4 Appellant may of course challenge the order granting respondents’
motion to vacate the default in any later appeal from the final judgment in
this case. (See § 904.1, subd. (a)(1); Veliscescu, supra, 231 Cal.App.3d at
p. 1523, fn. 1.)
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“total lack of merit of this appeal is evidence that appellant intended it for
delay . . . .”
Section 907 provides: “When it appears to the reviewing court that the
appeal was frivolous or taken solely for delay, it may add to the costs on
appeal such damages as may be just.” Our Supreme Court has further
explained that “an appeal should be held to be frivolous only when it is
prosecuted for an improper motive—to harass the respondent or delay the
effect of an adverse judgment—or when it indisputably has no merit—when
any reasonable attorney would agree that the appeal is totally and
completely without merit. [Citation.]” (In re Marriage of Flaherty (1982)
31 Cal. 3d 637, 650.) Moreover, “the power to punish attorneys for
prosecuting frivolous appeals . . . should be used most sparingly to deter only
the most egregious conduct.” (Id. at pp. 650-651.)
In the present case, we have found that appellant’s purported appeal is
from a nonappealable order and must therefore be dismissed. However, this
fact alone is not sufficient to justify the imposition of monetary sanctions.
(See In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650 [“An appeal that is
simply without merit is not by definition frivolous and should not incur
sanctions”].) Considering the strict standard for imposing sanctions, the fact
that appellant does not appear to have any legal background and has
litigated the current action in propria persona both in the trial court and this
court, and the arguable ambiguity regarding whether a clerk’s judgment
could have been entered,5 we conclude the imposition of monetary sanctions
is not warranted in this case. (See id. at p. 651 [sanctions “should be used
5As noted, the trial court itself acknowledged the potential for
uncertainty when, in its order vacating the default, it stated that “to the
extent the Requests for Entry of Default entered by the clerk could be
construed as entering default judgments, they are set aside . . . .”
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most sparingly to deter only the most egregious conduct”]; cf. Kabbe v. Miller
(1990) 226 Cal. App. 3d 93, 98 [while “recogniz[ing] that a litigant appearing in
propria persona is generally held to the same restrictive rules and procedures
as an attorney,” appellate court found it inappropriate “to hold a propria
persona appellant to the standard of what a ‘reasonable attorney’ should
know is frivolous unless and until that appellant becomes a persistent
litigant”].)
DISPOSITION
The appeal is dismissed. Costs on appeal are awarded to respondents.
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_________________________
Richman, J.
We concur:
_________________________
Kline, P. J.
_________________________
Stewart, J.
Barker v. Di Lando (A159556)
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