Opinion
B199593
9-8-2008
VAN CHUONG DANG, Plaintiff and Respondent, v. UNIFIED VIETNAMESE COMMUNITY COUNCIL et al., Defendants and Appellants.
Law Offices of Shun C. Chen and Shun C. Chen for Defendants and Appellants. Law Offices of Gary C. Eto and Gary C. Eto for Plaintiff and Respondent.
Not to be Published
This purported appeal is from the denial of a motion for relief due to attorney mistake. We lack jurisdiction to entertain the appeal and therefore dismiss it.
FACTUAL AND PROCEDURAL BACKGROUND
Dang filed a first amended complaint seeking an involuntarily dissolution of the Unified Vietnamese Community Council (UVCC) pursuant to Corporations Code section 6510. UVCC, former Attorney General Bill Lockyer, Dieu H. Ly, Anh T. Nguyen, Hau D. Pham, Them K. Tran, Chi C. Nguyen, and Ha T. N. Hy were named as defendants. (Ly, Anh Nguyen, Pham, Tran, Chi Nguyen, and Hy collectively are referred to as the individual defendants.) UVCC cross-complained, asserting causes of action for fraud and deceit, breach of fiduciary duty, negligence, conversion, and accounting. The Infinity Law Group and Mai Dang Wells were named as codefendants in the first amended cross-complaint.
Trial was held on December 26, 2006. Neither UVCC nor the individual defendants appeared. Dang, the chairman of the board of directors at UVCC testified that he wanted the corporation to be dissolved and the assets to be given to charity. The trial court indicated it intended to enter judgment for Dang.
In an order dated April 3, 2006, the court stated that UVCC and the individual defendants and cross-complainants failed to appear. Judgment was entered April 3, 2007 as follows: UVCC was to be dissolved and its assets were to be distributed to Chinatown Service Center with certain conditions. The first page of the judgment referenced both the complaint and cross-complaint. Notice of entry of judgment was served and filed April 19, 2007.
UVCC and the individual defendants appealed from "[j]udgment after court trial" on June 4, 2007. The notice of appeal indicates that judgment was entered on April 3, 2007. In their opening brief, appellants state, "This appeal arises from a judgment of the superior court, unlimited jurisdiction, C.C.P. § 904.1(a)(1)."
On March 20, 2007, UVCC and the individual defendants moved to set aside the "(tentative) judgment" pursuant to Code of Civil Procedure section 473 (473 motion). They argued that a party should be relieved from its attorneys mistake, inadvertence, surprise or neglect. In a declaration in support of the motion, Attorney Neil X.N. Nguyen stated that the courts decision was the result of his mistake. "During the Christmas weekend, I was heavily involved in the Vietnamese community functions. I did not attend the hearing on December 26th, 2006, and did not ask my clients to attend, with the anticipation that the Court may grant [a] continuance." Attorney Nguyen had anticipated a continuance based on a prior stipulation of the parties. The court did not grant the requested continuance.
In an order dated April 10, 2007, the court denied the 473 motion. Appellants did not file a second notice of appeal.
DISCUSSION
Appellants characterize the issue presented on appeal as follows, "Whether the trial court erred by denying UVCCs motion to set aside the ruling to dissolve UVCC[.]" Appellants sole argument is that the trial court should have granted their 473 motion to vacate the judgment. We agree with respondent that this court lacks jurisdiction to decide this appeal because appellants did not appeal from the order denying their motion to set aside the judgment.
The order denying a motion to set aside a judgment pursuant to Code of Civil Procedure section 473 is appealable under Code of Civil Procedure section 904.1, subdivision (b). (Cochran v. Linn (1984) 159 Cal.App.3d 245, 249; see also SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516, fn. 3.)
"If an order is appealable, an aggrieved party must file a timely notice of appeal from the order to obtain appellate review. [Citation.] A notice of appeal from a judgment alone does not encompass other judgments and separately appealable orders. . . ." (Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 212, 239.) "`"[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal."" (Ibid.) Because the denial of the 473 motion was a separately appealable order, the notice of appeal from the judgment does not encompass the subsequent order.
Citing Guillemin v. Stein (2002) 104 Cal.App.4th 156, 161 as support, appellants argue the ruling on the 473 motion "can be best characterized as an affirmance of the judgment, and thereby cannot be reviewed on its own." In Guillemin, the court found that sanctions for discovery abuse are not separately appealable unless they exceed $5,000. (Ibid.) Therefore, sanctions under $5,000 can be reviewed in an appeal from the final judgment. (Ibid.) The critical difference here, is that the order denying appellants relief from the judgment was separately appealable. In addition, no argument can be made that the judgment encompassed a decision on the 473 motion because after appellants filed the 473 motion, but before it was scheduled for a hearing, the court informed appellants: "[I]f youre going to bring a motion, Ill look at your motion when I get it, but nothing youre telling me makes me think today that I should not enter judgment."
California Rules of court, rule 8.100 provides: "The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed." There is no reasonable way to construe the notice of appeal from the judgment as an appeal from an order denying section 473 relief. The notice of appeal states that it is from "[j]udgment after court trial" and cites only to the judgment dated April 3, 2006. No reference to the April 10th order is made, precluding the construction that the appeal was from that order. (See Morton v. Wagner (2007) 156 Cal.App.4th 963, 967.) Although we granted appellants motion to augment the record on appeal, the inclusion of the courts order denying appellants motion does not affect a modification to the notice of appeal to enlarge the scope of appeal. The appeal therefore must be dismissed for want of jurisdiction.
DISPOSITION
The appeal is dismissed.
We concur:
RUBIN, J.
FLIER, J. --------------- Notes: The individual defendants are identified in the notice of appeal in addition to UVCC. The case information status sheet identifies the case as Van Choung Dang v. Unified Vietnamese Community Council but lists Neil X.N. Nguyen as the attorney for "Unified Vietnamese Community Council, et al." In the opening brief, only UVCC and Dang are identified as interested parties. The opening brief refers only to UVCC as an appellant. When asked, counsel indicated that the appeal was intended to include both UVCC and the individual defendants.