Opinion
A145359
03-23-2018
N.A. SALES COMPANY, INC., Plaintiff and Respondent, v. HAE-SUK LEE et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. CIV525758)
This appeal arises from a contract and fraud action brought by plaintiff N.A. Sales Company, Inc. (N.A. Sales), based on the alleged nonpayment for frozen fish and other products it supplied to Japanese restaurants. Defaults, and in some cases default judgments, were entered against several individual defendants, who N.A. Sales claimed were responsible for payment of the amounts owed or for other damages sustained by N.A. Sales. The defendants moved to vacate the defaults and default judgments on the ground of attorney fault, relying on the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b). The trial court denied the motion, and this appeal followed. We conclude the court erred, because the motion and accompanying attorney declaration of fault satisfied the requirements of the mandatory relief provision of section 473(b). We therefore reverse.
All undesignated statutory references are to the Code of Civil Procedure. References to section 473(b) are to section 473, subdivision (b) of that code.
As to one defendant, we conclude no appealable judgment or order exists, but we treat her appeal as a writ petition and grant it.
I. BACKGROUND
A. The Complaints and the Parties
N.A. Sales alleges it provided frozen fish and other products to four companies that operated Japanese restaurants (ISIF Madfish, Inc.; Town & Country Madfish, Inc.; Fremont Gateway, Inc.; and Bishop Ranch Gateway, Inc.; collectively, the Companies). The Companies opened open book accounts between 2008 and 2010; by August 2010, they had unpaid balances totaling about $216,000. The Companies subsequently "sold or closed businesses, and filed for bankruptcy or otherwise did not pay."
N.A. Sales sued individuals and entities that it claims promised to pay the amounts owed by the Companies, are alter egos of the Companies, or engaged in a fraudulent scheme to transfer assets and avoid paying N.A. Sales. In its initial complaint, filed in December 2013, N.A. Sales named as defendants Moon Joo Lee and his father (Hae-Suk Lee) and mother (Soon Bok Park), and asserted causes of action for (1) "promissory estoppel" against Hae-Suk Lee, based on a promise he allegedly made to pay the balance owed by the Companies, and (2) "alter ego," based on the allegation that Moon Joo Lee, Hae-Suk Lee and Soon Bok Park are the alter egos of the Companies.
N.A. Sales filed its First Amended Complaint (the FAC) on February 20, 2014. In addition to the three individuals named in the initial complaint, the FAC adds as defendants June Kim (allegedly an agent of the Lee/Park family and the Companies), Seraphina Jang (the mother-in-law of June Kim), Pacific Common Enterprise, LLC (Pacific), and 10 "Doe" defendants.
The FAC asserts six claims: (1) "promissory estoppel" against Hae-Suk Lee, (2) breach of written contract against Hae-Suk Lee and Moon Joo Lee, based on alleged agreements to pay the balance owed by the Companies, (3) fraud against the same two defendants, based on alleged promises to pay the balance, (4) "alter ego" against Hae-Suk Lee and Soon Bok Park, (5) "to set aside or annul fraudulent transfers" (against all defendants except Moon Joo Lee), and (6) "conspiracy" (against all six defendants). In the last two causes of action, N.A. Sales alleges the defendants conspired to, and did, transfer assets to prevent N.A. Sales from enforcing the guaranties of payment given by Hae-Suk Lee and Moon Joo Lee. N.A. Sales alleges the Lee/Park defendants purchased a house in the name of Seraphina Jang, who then transferred it to Pacific, an entity organized by June Kim. The FAC seeks $216,000 in damages, $1,000,000 in punitive damages, declaratory and injunctive relief, prejudgment interest of 18 percent per annum, and attorney fees and costs.
On March 26, 2014, N.A. Sales filed an amendment to the FAC naming two defendants that it stated it had previously sued as Doe defendants due to ignorance of their true names: (1) "Jun Ho Kim, an individual" (who is not the same person as the previously-named defendant June Kim); and (2) "YM Wholesale Food, an unknown business entity." The amendment does not specify the roles these defendants played in the events alleged in the FAC.
As we discuss below, defaults were later entered against the four defendants who are pursuing the present appeal (Hae-Suk Lee, Soon Bok Park, Moon Joo Lee and Jun Ho Kim), and default judgments were entered against all these defendants except Soon Bok Park.
Our discussion of the action's procedural history will focus primarily on the events involving these four defendants.
B. Service of Summons
On February 20, 2014, N.A. Sales filed proofs of service stating it had served the summons and complaint on Hae-Suk Lee and Soon Bok Park in South Korea, in accordance with the Hague Service Convention. (See § 413.10, subd. (c).) On April 16, 2014, N.A. Sales filed amended proofs of service with additional details about this service. The amended proofs state that, on February 14, 2014, in accordance with the Hague Service Convention, the Incheon District Court of Korea delivered the summons and complaint to Hae-Suk Lee (on behalf of himself and his wife, Soon Bok Park) at their residence in South Korea. (The complaint referred to in these proofs of service presumably was the initial complaint because, on the date of service (February 14, 2014), the FAC had not yet been filed.) On March 12, 2014, N.A. Sales filed a proof of service stating it had served the FAC on Hae-Suk Lee and Soon Bok Park by sending it to them in South Korea via Federal Express.
Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638.
As to Moon Joo Lee and Jun Ho Kim, N.A. Sales filed proofs of service in May 2014 (and amended proofs of service in June 2014) stating that, on April 3, 2014, it served these two defendants by substituted service at an address in Fremont, California. (See § 415.20.)
C. The Motion to Quash Service of Summons (Hae-Suk Lee and Soon Bok Park)
On April 17, 2014, attorney Kenneth Bauer filed on behalf of Hae-Suk Lee and Soon Bok Park a motion to quash service of summons (see § 418.10, subd. (a)(1)), contending the court lacked personal jurisdiction over them because they did not have the required minimum contacts with California. The court (Hon. Lisa A. Novak) denied the motion on May 15, 2014, concluding N.A. Sales had shown in its opposition papers that Hae-Suk Lee and Soon Bok Park had substantial contacts with California, including significant involvement in the operation of the Companies. D. The Defaults Against Hae-Suk Lee, Moon Joo Lee and Jun Ho Kim
One day before filing this motion, attorney Bauer filed an answer on behalf of defendant June Kim (who is not a party to the present appeal).
Around the time Bauer filed the motion to quash on behalf of Hae-Suk Lee and Soon Bok Park, N.A. Sales submitted a request for default as to Hae-Suk Lee (but did not submit a similar request as to Soon Bok Park). The request is dated April 14, 2014; the court clerk entered the default on April 18, 2014.
In its May 15, 2014 minute order denying the motion to quash, the court ruled the motion was not barred as to Hae-Suk Lee by the April 18, 2014 entry of his default, because the motion to quash had been filed on April 17, 2014.
On June 3, 2014, the clerk entered defaults against Moon Joo Lee and Jun Ho Kim. E. The Default Judgments Against Hae-Suk Lee, Moon Joo Lee and Jun Ho Kim
On November 19, 2014, following a prove-up hearing, the court (Hon. Joseph C. Scott) entered a default judgment against Hae-Suk Lee and Moon Joo Lee. The court awarded $216,000 in contract damages, prejudgment interest totaling $92,160, and punitive damages of $200,000, for a total of $508,160. On February 6, 2015, after another hearing, the court (Judge Scott) entered (1) an order awarding N.A. Sales attorney fees of $100,000 and costs totaling $7,021.53 against Hae-Suk Lee and Moon Joo Lee, and (2) an amended judgment against those two defendants, adding the fees and costs to the amounts included in the earlier judgment, for an amended total of $615,181.53.
After a separate prove-up hearing on December 16, 2014, the court (Hon. Joseph E. Bergeron) entered a default judgment against Jun Ho Kim and certain other defendants. The court awarded $216,000 in damages and prejudgment interest totaling $172,584, for a total of $388,584.
F. The Default Against Soon Bok Park
On February 9, 2015, the court clerk entered a default against Soon Bok Park. No default judgment was entered against her.
G. The Motion to Vacate the Defaults and Default Judgments
On March 18, 2015, Hae-Suk Lee, Soon Bok Park, Moon Joo Lee, Jun Ho Kim and one other defaulting defendant (Seraphina Jang) filed a motion to vacate the defaults and default judgments on the ground of attorney mistake and neglect. The motion (filed by attorney Bauer on behalf of the moving defendants) argued relief was mandatory under section 473(b) because an accompanying declaration signed by Bauer acknowledged his mistake or neglect. N.A. Sales opposed the motion, and the court (Judge Scott) denied it on April 14, 2015.
The court's order states it issued a tentative ruling. No party appeared for the hearing on the motion or contested the tentative ruling, and the court adopted it.
H. The Motion for Reconsideration
On April 29, 2015, the five defendants who had filed the motion to vacate (Hae-Suk Lee, Soon Bok Park, Moon Joo Lee, Jun Ho Kim and Seraphina Jang), represented by new counsel (who stated they were making a special appearance), filed a motion for reconsideration of the order denying the motion to vacate. (See § 1008.) N.A. Sales opposed the reconsideration motion, and on June 3, 2015, after a hearing, the court (Judge Scott) issued a minute order denying the motion. The court entered a signed order incorporating its ruling on June 18, 2015.
I. The Notice of Appeal
The five defendants who filed the unsuccessful motions to vacate and for reconsideration (Hae-Suk Lee, Soon Bok Park, Moon Joo Lee, Jun Ho Kim and Seraphina Jang), now proceeding in propria persona, filed a joint notice of appeal on June 8, 2015. The notice states the defendants are appealing a judgment or order entered on April 14, 2015 (the date of the court's order denying the motion to vacate). Defendants also checked boxes and added language stating they are appealing (1) a "[d]efault judgment," (2) the order denying the motion to vacate, and (3) the order denying reconsideration. Defendants subsequently retained appellate counsel.
Seraphina Jang subsequently dismissed her appeal. We will sometimes refer to the four remaining appealing defendants (Hae-Suk Lee, Soon Bok Park, Moon Joo Lee and Jun Ho Kim) as "defendants."
II. DISCUSSION
A. The Denial of the Motion to Vacate
"Section 473, subdivision (b), provides for both discretionary and mandatory relief from dismissal, entry of default, and default judgment." (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927.) The mandatory relief provision states that a "court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties." (§ 473(b).)
The mandatory relief provision of section 473(b) serves "(1) 'to relieve the innocent client of the consequences of the attorney's fault' [citations]; (2) 'to place the burden on counsel' [citation]; and (3) 'to discourage additional litigation in the form of malpractice actions by the defaulted client against the errant attorney.' " (Martin Potts and Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 439 (Corsair).) These remedial purposes are "consistent with the general preference for relief from procedural defaults reflected in section 473 as a whole. ' "It is well settled that appellate courts have always been and are favorably disposed toward such action upon the part of the trial courts as will permit, rather than prevent, the adjudication of legal controversies upon their merits." [Citation.] Thus, "the provisions of section 473 of the Code of Civil Procedure are to be liberally construed and sound policy favors the determination of actions on their merits." ' " (Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1037.)
"The meaning of section 473, subdivision (b) is a question of statutory interpretation we review de novo. [Citation.] Whether section 473, subdivision (b)'s requirements have been satisfied in any given case is a question we review for substantial evidence where the evidence is disputed and de novo where it is undisputed." (Corsair, supra, 244 Cal.App.4th at p. 437.) In particular, " 'the sufficiency of defendants' showing of attorney fault, if believed, to trigger the mandatory relief provisions of [§ 473(b)] . . . presents a pure question of law as to which we are in no respect bound by, or obliged to defer to, the trial court's express or implied determination.' " (Behm v. Clear View Technologies (2015) 241 Cal.App.4th 1, 14 (Behm).)
Here, defendants contend the trial court erred in denying the motion to vacate brought pursuant to the mandatory relief provision of section 473(b). We agree. In its April 14, 2015 order, the court found the motion defective on three grounds that N.A. Sales had urged in its opposition to the motion. We agree with defendants that none of the stated grounds supports the court's denial of the motion.
First, the court stated "[d]efendants' counsel has failed to demonstrate excusable mistake or neglect." But in contrast to the discretionary relief provision of section 473(b) (which requires that neglect be excusable), an attorney's affidavit of fault filed in support of a motion for mandatory relief under the statute "need not show that the attorney's mistake, inadvertence, surprise, or neglect was excusable." (Behm, supra, 241 Cal.App.4th at p. 14.)
Second, the court stated the motion to vacate was untimely as to the defendants other than Soon Bok Park, because it was filed more than six months after their defaults were taken. Section 473(b) states a motion for mandatory relief must be filed "no more than six months after entry of judgment." This six-month period commences upon entry of a default judgment, not at the earlier entry of default. (Sugasawara v. Newland (1994) 27 Cal.App.4th 294, 297.) Defendants filed their motion to vacate on March 18, 2015, which was within six months of the entry of judgment: The default judgment against Hae-Suk Lee and Moon Joo Lee was entered on November 19, 2014, and an amended judgment against them was entered on February 6, 2015; the default judgment against Jun Ho Kim was entered on December 16, 2014. The motion was timely.
Third, the court noted defendants did not provide the required period of notice between the date they served and filed their motion and the date they set for the hearing on the motion (i.e., 16 court days, plus five additional calendar days when service is by mail). (See § 1005, subd. (b).) Defendants filed their motion on March 18, 2015 (along with a proof of service stating they served the motion by mail on March 17, 2015), and set the hearing on the motion for April 9, 2015. Defendants thus provided 15 court days' notice, as March 31, 2015 was a court holiday.
Despite the shortened notice period, however, we conclude as a matter of law that N.A. Sales waived the defect when it opposed the motion to vacate on its merits. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 [if opposing party appears at hearing and opposes motion on its merits, defects in service are waived]; accord, Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 918.) N.A. Sales filed a written opposition in which, in addition to arguing defendants had not provided the requisite number of days' notice of the hearing, it contended defendants were not entitled to relief under section 473(b). Specifically, N.A. Sales argued in part that (1) the entry of the defaults was not the result of mistake or neglect, but was instead the product of defendants' deliberate choices about whether and how to respond to N.A. Sales's claims, (2) any mistake by the defendants or attorney Bauer was not "excusable" (which N.A. Sales contended was a requirement for relief), and (3) Bauer's declaration did not sufficiently explain why he made the alleged mistakes. N.A. Sales did not request a continuance of the hearing or claim it was prejudiced by the shortened notice period. (See Carlton, supra, 77 Cal.App.4th at p. 697.) In these circumstances, N.A. Sales waived any claim of inadequate service or notice. The court erred by denying the motion on this basis.
As noted, no party attended the April 9, 2015 hearing and no oral argument was held on the motion, because defendants did not contest the court's tentative ruling in favor of N.A. Sales.
In its appellate brief, N.A. Sales does not contend any of the three grounds cited by the trial court provides a basis for affirming its order denying relief under section 473(b). Instead, N.A. Sales argues the court's order should be affirmed because Bauer's declaration of fault was insufficient to trigger the mandatory relief provision of the statute, or because the trial court implicitly found that Bauer's declaration of fault was not credible and that defendants actually chose to default. We are not persuaded. Although we may affirm the order on grounds not relied on by the trial court (see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980-981), we find no basis for doing so here.
In his declaration, Bauer states defaults were taken against several defendants (including Hae-Suk Lee, Moon Joo Lee and Jun Ho Kim) prior to a case management conference on August 21, 2014. At that conference and in subsequent communications (including at an October 24, 2014 case management conference), counsel for the parties discussed, but did not resolve, the question of setting aside the defaults. Bauer states he "mistakenly failed to follow up with [counsel for N.A. Sales] regarding a stipulation to set aside the defaults" and "mistakenly failed to file a motion to do so." Default judgments were entered against Hae-Suk Lee and Moon Joo Lee in November 2014 and against Jun Ho Kim in December 2014, and default was entered against Soon Bok Park in February 2015. Bauer concludes: "The default judgments against defendants Hae-Suk Lee, Moon Joo Lee, Jun Ho Kim, [and certain other defendants], and the default against defendant Soon Bok Park, were entered as a result of my mistake and neglect in failing to either obtain the previously agreed to stipulation from [N.A. Sales's counsel], or filing a motion to set aside the defaults already taken."
Parsing the language of the declaration, N.A. Sales contends Bauer's admission of fault is insufficient as to Hae-Suk Lee, Moon Joo Lee and Jun Ho Kim, because Bauer mentions the default judgments against them but does not separately and expressly take responsibility for the earlier entry of their defaults. The cases N.A. Sales cites on this point—State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600 (Pietak) and Cisneros v. Vueve (1995) 37 Cal.App.4th 906 (Cisneros)—do not persuade us that Bauer's declaration is insufficient. N.A. Sales cites language from Pietak emphasizing an attorney admission of fault is a prerequisite to relief under the mandatory provision of section 473(b). (See Pietak, supra, 90 Cal.App.4th at pp. 608-609.) The Pietak court stated in part: "This indispensable admission by counsel for the moving party that his error resulted in the entry of a default or dismissal from which relief is sought is commonly referred to as an 'attorney affidavit of fault.' " (Id. at p. 609.) Because the attorney there made no "straightforward admission of fault," his client was not entitled to mandatory relief under section 473(b) from a dismissal of claims. (Pietak, supra, 90 Cal.App.4th at pp. 609-610.) Here, in contrast, Bauer did make an admission of fault. We do not read Pietak as authority for concluding his declaration was insufficiently detailed or explicit to trigger the mandatory relief provision of section 473(b).
In Cisneros, the appellate court concluded that, "while the amendment [adding the mandatory relief provision to § 473(b)] authorizes relief from both default and default judgment, the statute is equally clear that for mandatory relief to apply the court must also satisfy itself that the default (i.e., the failure to respond) was in fact caused by attorney mistake or neglect." (Cisneros, supra, 37 Cal.App.4th at pp. 910-911.) In that case, after the entry of the defendants' default, their insurer retained an attorney to represent them in the action, but the attorney then forgot about the case and neglected to file a motion to set aside the default, resulting in the entry of a default judgment. (Id. at p. 908.) The defendants filed a section 473(b) mandatory relief motion, supported by an affidavit from their attorney that the Court of Appeal described as "confessing his responsibility for the lengthy period of inaction in the case." (Cisneros, supra, 37 Cal.App.4th at pp. 908-909.) The trial court denied the motion, and the Court of Appeal affirmed. (Id. at pp. 909, 913.)
The appellate court in Cisneros stated it "assume[d]" the attorney's affidavit "was sufficient to establish attorney neglect within the meaning of" section 473 (Cisneros, supra, 37 Cal.App.4th at p. 909), but affirmed the denial of relief based on "the 'unless' clause" in the mandatory provision of the statute (id. at p. 910), i.e., the clause stating an attorney affidavit of fault requires that the court grant relief "unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect" (§ 473, subd. (b); see Cisneros, supra, 37 Cal.App.4th at p. 910). The appellate court stated: "Expressly by its comments and impliedly by its order, the trial court found that the 'unless' clause applied because the default was not caused by any act or omission on the part of defendants' attorney. The logic cannot be questioned, since it is undisputed that [the attorney] was not hired until after defendants' default was taken." (Ibid.)
We have no quarrel with the result in Cisneros. But as noted, the court there did not address any argument as to the adequacy of an attorney affidavit of fault, instead upholding the denial of relief based on a trial court finding that the "unless" clause of the statute applied because the attorney had not been retained when the default was entered. (Cisneros, supra, 37 Cal.App.4th at pp. 909-910.) No such circumstances exist here. When the first default was entered (against Hae-Suk Lee, on April 18, 2014), Bauer already represented at least some of the defendants, and he had filed pleadings on behalf of some of them (including Hae-Suk Lee and Soon Bok Park). In its opposition to the motion to vacate, N.A. Sales did not argue Bauer did not represent the defendants at the time default was entered. To the contrary, N.A. Sales asserted generally that all defendants were under common control and were represented by Bauer (with the exception of one defendant who is not a party to this appeal).
Moreover, the trial court here made no finding that Bauer's neglect did not cause the defendants' default. The court's order denying relief contains no express finding on this point. (See Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 726-727 ["unless" clause requires trial court to make explicit, rather than implied, finding]; but see Cisneros, supra, 37 Cal.App.4th at p. 910 [referring to trial court's "[e]xpress[]" and "implied[]" findings that "unless" clause applied].) And even if an implied finding could trigger the "unless" clause, we see no basis for implying such a finding here (and we reject N.A. Sales's contrary suggestion in its appellate brief). As noted, in its opposition to the motion to vacate, N.A. Sales argued defendants defaulted not because of mistake or neglect, but because they chose not to respond to N.A. Sales's claims. We do not construe the trial court's order—in which it expressly relied on other grounds for denial of relief that N.A. Sales had suggested in its opposition papers (i.e., the alleged untimeliness of defendants' motion, the shortened notice period, and the failure to show "excusable" neglect)—as an adoption of N.A. Sales's theory that defendants deliberately defaulted.
While Bauer's declaration is somewhat vague and imprecise, there is no merit in N.A. Sales's argument that Bauer "explicitly stated . . . that he had nothing to do with the entry of defaults." Bauer expressly admitted his neglect (which ultimately resulted in the entry of the default judgments), and he did not state he was not responsible for the entry of the defaults. In light of the strong policy favoring the determination of actions on their merits (see Rodrigues v. Superior Court, supra, 127 Cal.App.4th at p. 1037), we decline to read Bauer's declaration as narrowly as N.A. Sales requests. We conclude the declaration required the court to grant relief under the mandatory provision of section 473(b). Accordingly, as to defendants Hae-Suk Lee, Moon Joo Lee and Jun Ho Kim (against whom default judgments were entered), we reverse the court's order denying the motion to vacate the defaults and default judgments.
Because we conclude defendants' initial motion to vacate and Bauer's accompanying declaration required the court to grant relief, we need not consider whether the court erred by denying defendants' subsequent motion for reconsideration. (See § 1008, subd. (g).)
In addition to challenging the order denying the motion to vacate, defendants' notice of appeal purports to challenge the default judgments themselves, and defendants argue in their appellate briefs that the judgments are defective on due process, statutory and procedural grounds. In response, N.A. Sales argues in part that the notice of appeal is untimely as to the default judgments. Because we reverse the order denying the motion to vacate the judgments, we will dismiss as moot defendants' purported appeal of the judgments themselves, and we need not determine whether that appeal is timely or meritorious. --------
B. Soon Bok Park's Appeal
As noted, no default judgment was entered against defendant Soon Bok Park. Neither the clerk's entry of default against her nor the court's order denying her motion to vacate the default is appealable (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960), and the order denying reconsideration likewise is not separately appealable (see § 1008, subd. (g)).
Prior to the filing of the record, N.A. Sales filed a motion seeking dismissal of the entire appeal on the grounds that (1) Soon Bok Park had failed to challenge an appealable judgment or order, and (2) the other defendants' appeal was "inseparable" from Soon Bok Park's appeal. In their opposition, defendants opposed dismissal of the entire appeal, arguing the judgments and postjudgment orders entered against the defendants other than Soon Bok Park are appealable. Defendants did not contend any appealable judgment or order exists as to Soon Bok Park (and indeed they conceded the entry of default against her is not appealable), but they asked this court to treat her appeal as a petition for extraordinary writ relief "and permit her to seek appellate review of [the] order denying the motion to vacate the entry of default against her."
We denied N.A. Sales's motion (which, as noted, sought dismissal of the entire appeal) on the ground this action is "a multiparty lawsuit" and there is a final judgment "at least" between N.A. Sales and the appealing defendants other than Soon Bok Park. (See Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 435-437 & fn. 3 [judgment in favor of plaintiff and against two defendants was "final as between" those parties; appellate court had jurisdiction to consider the appeal filed by the two defendants against whom judgment had been entered, even if the plaintiff's action was still pending against other defendants].) We stated: "[E]ven if plaintiff's action is still pending against defendant Park, the judgment is final and appealable as between plaintiff and the other . . . defendants."
In our order denying N.A. Sales's motion to dismiss the entire appeal, we did not expressly address the appropriate disposition of Soon Bok Park's appeal. Because no appealable judgment or order exists as to her, we ordinarily would dismiss her appeal. (See First American Title Co. v. Mirzaian, supra, 108 Cal.App.4th at p. 961.) Here, however, since the other defendants' appeal of the order denying the motion to vacate is properly before us, we will exercise our discretion to treat Soon Bok Park's improper appeal of that order as a writ petition. (See California Dental Assn. v. California Dental Hygienists' Assn. (1990) 222 Cal.App.3d 49, 60 [where order at issue was final and appealable as to some (but not all) parties in a multiparty case, appeal treated as writ petition as to remaining parties; to defer consideration of the remaining parties' premature appeal "would further the very fragmentation and multiplicity of appeals that the final judgment rule seeks to avoid"]; G.E. Hetrick & Associates, Inc. v. Summit Construction & Maintenance Co. (1992) 11 Cal.App.4th 318, 325-326 & fn. 5.)
For the reasons stated in part II.A above, the court erred by denying the motion to vacate. We therefore will grant writ relief as to Soon Bok Park.
III. DISPOSITION
As to defendants Hae-Suk Lee, Moon Joo Lee and Jun Ho Kim, the trial court's April 14, 2015 order denying the motion to vacate the defaults and default judgments is reversed. The trial court is directed to vacate the defaults and default judgments entered against Hae-Suk Lee, Moon Joo Lee and Jun Ho Kim.
Deeming defendant Soon Bok Park's appeal to be a petition for a writ of mandate challenging the April 14, 2015 order denying the motion to set aside her default, the petition is granted. The trial court is directed to vacate the default entered against Soon Bok Park.
Defendants' purported appeal of the default judgments is dismissed as moot.
The parties shall bear their own costs on appeal.
/s/_________
Streeter, J. We concur: /s/_________
Ruvolo, P.J. /s/_________
Reardon, J.