Opinion
B187645
12-11-2006
ANTHONY D. JACKSON et al., Plaintiffs and Respondents, v. DONALD TYLER, Defendant and Appellant.
Charles J. McLurkin for Defendant and Appellant. David E. Simon for Plaintiffs and Respondents.
Defendant Donald Tyler appeals from an order denying his motion for relief from default, taken by plaintiffs Anthony and Gwendolyn Jackson, in an action alleging fraud by defendant. The order is jurisdictionally nonappealable. Because the circumstances do not warrant exercise of the power to treat the appeal as a petition for writ, we dismiss it.
FACTS
Plaintiffs complaint contained causes of action for specific performance, breach of contract, and fraud, against one Robert Smith, with defendant being named in the latter cause only, along with Smith and a corporation. The gravamen of the complaint was that defendant had advised plaintiffs, who were in need of refinancing of their residence, to deal with Smith, who would obtain the financing after being conveyed plaintiffs home. Smith would be paid a certain sum, and would reconvey the home to plaintiffs after a year. Smith, however, refused to reconvery, and brought an unlawful detainer proceeding against plaintiffs. The third cause of action alleged fraud in the nature of a promise made without intention to perform.
According to the proof of service by plaintiffs process server, defendant was served with the summons and complaint on April 29, 2005. On May 31, 2005, defendants default was entered, at plaintiffs request. Defendant attempted to file an answer to the complaint on June 7, but on June 15 the clerk informed him it could not be processed, because of the default.
On August 16, 2005, defendant, in pro. per., filed a motion for relief from default. He claimed that he had actually been served on May 6, 2005, and that his default had been taken prematurely. The motion did not include a proof of service.
At the hearing on September 14, 2005, the trial court denied defendants motion, without prejudice, because of (a) the proof of service showing service on April 29, 2005, (b) defendants failure to explain why he had not attempted to file an answer until a date that would have been late even under his claim of service, (c) failure to explain why defendant delayed filing the motion, and (d) the lack of proof of service of the motion. From this order, defendant filed this appeal.
DISCUSSION
An order denying relief from entry of default is not appealable. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981; First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960.) Defendant recognizes this in his brief, yet still seeks a merits decision by our treating the appeal as an extraordinary writ petition. Defendant has not established entitlement to such relief.
In Lopez v. Fancelli (1990) 221 Cal.App.3d 1305, 1307, footnote 2, the court entertained as a writ petition the appeal of a defendant whose default, like that of a co-appellant as to whom an appealable judgment had been entered, suffered from a reversible procedural error. Defendant adduces Lopez as analogous to the present case, but it is not. That plaintiffs did not reduce their default to judgment within 45 days after entry (Cal. Rules of Court, rule 201.7(h)) is not, as defendant asserts, a reversible error, infecting the antecedent entry of default. Moreover, without deciding the matter, there do not initially appear grounds for finding the ruling below an abuse of discretion. We perceive no reason why this appeal should be treated as anything other than it is.
DISPOSITION
The appeal is dismissed. Plaintiffs shall recover costs.
We concur:
RUBIN, J.
FLIER, J. --------------- Notes: Smiths unlawful detainer has been consolidated with this action.