Opinion
D075484
03-20-2020
DIANE DANIELS, Plaintiff and Appellant, v. JAIME MURILLO et al., Defendants and Respondents.
Diane Daniels, in pro. per., for Plaintiff and Appellant. No appearance for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2018-00018217-CU-UD-CTL) APPEAL from two postjudgment orders of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Appeal dismissed. Diane Daniels, in pro. per., for Plaintiff and Appellant. No appearance for Defendants and Respondents.
Plaintiff Diane Daniels (Appellant) appeals from two postjudgment minute orders: one filed November 2, 2018, and one filed November 16, 2018. Each of these orders contains multiple rulings, but none of the rulings is an appealable order. Without an appealable order, we lack jurisdiction; and without jurisdiction, we must dismiss the appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Unless indicated otherwise, the summary of the underlying proceedings is based on the clerk's transcript designated by Appellant.
The clerk of the superior court failed to include in the clerk's transcript a copy of the register of actions (ROA), which Appellant properly designated. (Cal. Rules of Court, rule 8.122(b)(1)(F); further unidentified rule references are to the California Rules of Court.) Appellant failed to notify the clerk of the omission, and on our own motion, we have corrected the record on appeal to include the ROA as part of the clerk's transcript. (Rule 8.155(b)(1), (c)(1).) This is necessary in part for us to determine what happened in the superior court. The clerk's transcript consists of only 39 entries dated between April 13, 2018, and February 25, 2019, whereas the ROA consists of 227 entries (many entries with multiple documents) dated between April 13, 2018, and May 16, 2019.
Appellant represented herself throughout the trial court proceedings and is now representing herself on appeal. In both the trial and appellate courts, the procedural rules apply the same to a self-represented party as to a party represented by counsel. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 ["the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation"].) "The same burdens are imposed uniformly and equally on all appellants, and self-represented parties are ' "held to the same restrictive procedural rules as an attorney." ' " (Burkes v. Robertson (2018) 26 Cal.App.5th 334, 344-345; accord, Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205 ["The same rules apply to a party appearing in propria persona as to any other party."].) The fact that a party is representing herself is not a basis for special treatment that would be unfair to the other litigants. (Rappleyea, at pp. 984-985; McClain v. Kissler (2019) 39 Cal.App.5th 399, 416; see Advisory Com. com., Cal. Code Jud. Ethics, canon 3B(8).) Thus, while Appellant's self-represented status no doubt contributed to certain procedural and substantive deficiencies in both the trial and appellate courts, it does not excuse them.
Appellant filed this action in April 2018 as an unlawful detainer. She is the plaintiff, and she named as defendants Jaime Murillo, Aledra Retano, and Brian Richard (together Respondents). Appellant alleged that Respondents were at that time "in possession of" specifically identified premises located on Medio Street, San Diego, California (Premises) based on an agreement to rent the Premises "as a . . . fraud deed of trust." (Sic.) Appellant further alleged that she attached as exhibits to the complaint copies of the following three documents: (1) the written agreement to rent the Premises; (2) a July 3, 2017 "five[-]day demand for possession"; and (3) proof of service of the five-day demand. However, the complaint contains no exhibits. As for relief, Appellant sought: (1) possession of the Premises; (2) damages, at a daily rate of $85, from June 6, 2017 through judgment; (3) statutory damages up to $600 for malice; (4) "due to fraudulent deed of trust, malicious representation, demand restitution, actual damages, punitive damages, declaratory relief quiet title" (sic); and (5) costs.
Respondents have not appeared in the appeal. Rule 8.220(a)(2) provides that where there is no respondent's brief, "the court may decide the appeal on the record, the opening brief, and any oral argument by the appellant." (Here, Appellant did not request oral argument.) We do not consider the failure to file a respondent's brief as an admission of error; we review the presentation by Appellant—here, a clerk's transcript, a reporter's transcript and a brief—and determine whether she has met her burden of establishing reversible error. (Gou v. Xiao (2014) 228 Cal.App.4th 812, 817, fn. 3.)
According to the ROA, on April 24, July 6, July 17, July 17, and August 1, 2018, Appellant filed a first amended complaint, another first amended complaint, a second amended complaint, a third amended complaint, and a fourth amended complaint, respectively. The clerk's transcript does not contain any of these amended complaints.
On August 20, 2018—at a time when the fourth amended complaint was the operative complaint, according to the ROA—the clerk of the superior court entered a clerk's unlawful detainer judgment by default for possession only. The judgment is in favor of Appellant, against Respondents, and directs that Appellant is entitled to possession of the Premises.
On an unidentified date, certain unidentified Respondents filed an ex parte application to "stay the lockout"; and at a continued hearing on the application in mid-September 2018 the court "inform[ed]" the parties that "the order staying the lockout will remain in effect until 11/16/18." A week later, Appellant filed a "Motion for Reconsideration Lift Stay, violation of California Civil Code 918(b), and unalienable rights, taxes owed." (Sic.) At a hearing in October 2018, the court denied the motion, ruling in part: "The relief [Appellant] seeks via this Motion is not clear. To the extent this Motion seeks an order reconsidering a prior ruling of this Court, . . . [Appellant] fails to set forth a basis for reconsideration. See Code Civ. Proc.[, §] 1008 ('based upon new or different facts, circumstances, or law'). There is no evidence or rational argument supporting the claimed conflict of interest and fraud."
Appellant did not include in the clerk's transcript a copy of either the ex parte application or the "order staying the lockout" that was ordered to remain in effect until November 16, 2018.
By minute order filed November 2, 2018 (November 2 Order), the court set aside the August 2018 default judgment in favor of Appellant. More specifically, the court ruled that, pursuant to Code of Civil Procedure section 473.5, subdivision (a), Respondents "provided evidence demonstrating that service has not resulted in actual notice in time to defend the action." The November 2 Order also: sustained in part and overruled in part Respondents' special and general demurrers; granted Appellant leave to file a fifth amended complaint; and denied without prejudice Respondents' motion for an order determining Appellant to be a vexatious litigant and for a prefiling order prohibiting Appellant from filing new self-represented litigation in California without first obtaining leave of court.
"When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. . . ." (Code Civ. Proc., § 473.5, subd. (a).)
Appellant did not include in the clerk's transcript a copy of any pleadings related to either a motion to set aside the default judgment or a demurrer.
By minute order filed November 16, 2018 (November 16 Order), the court ruled that the "[l]ockout scheduled for 11/16/18 is ordered quashed and vacated." The November 16 Order also: directed Appellant "to file the 5th Amended Complaint" that she had already served on Respondents; set a deadline by which Respondents were to respond to the fifth amended complaint; and denied without prejudice the ex parte application that initiated the hearing.
Appellant did not include in the clerk's transcript a copy of any pleadings related to either quashing or vacating a lockout order, the fifth amended complaint, or the ex parte application that initiated the hearing.
On November 28, 2018, in one notice of appeal, Appellant timely appealed from the November 2 Order and the November 16 Order.
On December 13, 2018—approximately two weeks after initiating this appeal—Appellant filed a fifth amended complaint for: "Quiet Title and Adverse Possession Conversion, Wrongful Foreclosure, Grand Theft Larceny, Receiving Stolen Property, Receipt Stolen Property, Personal Injury, Fraud, Tortious Interference Declaratory Relief." (Sic.) This complaint consists of 47 typewritten pages and 100 pages containing 22 exhibits.
II. DISCUSSION
As we explain, we lack jurisdiction to review both the November 2 Order and the November 16 Order. Accordingly, we will dismiss the appeal. A. Law
Before considering the merits of any appeal, we must first consider appellate jurisdiction. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126 ["A reviewing court must raise the issue [of appellate jurisdiction] on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1."].) Although appellate jurisdiction is constitutionally prescribed (Cal. Const., art. VI, § 11), a party's right to appeal "is entirely statutory" (Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260, 267)—generally by Code of Civil Procedure section 904.1 in appeals like Appellant's (American Alternative Energy Partners II v. Windridge, Inc. (1996) 42 Cal.App.4th 551, 556-557 [§ 904.1, subd. (a) codifies the general list of appealable orders and judgments]).
Code of Civil Procedure section 904.1 codifies the "one final judgment rule"—by which, an appeal lies only from a judgment or order that terminates the trial court proceedings by determining the rights of the parties and completely disposing of the matter in controversy. (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5 (Dana Point).) The general test of finality focuses on whether and to what extent issues remain to be decided in the trial court: " ' "[W]here no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final [and appealable], but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory" ' " and not appealable. (Ibid., italics omitted.) Stated differently, a judgment is considered final for purposes of appellate jurisdiction " ' "when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined." ' " (Ibid.) Under California law, there is ordinarily only one "final judgment" in an action. (Sullivan v. Delta Air Lines (1997) 15 Cal.4th 288, 304.)
An additional requirement for a party to appeal is that she must be "aggrieved" by the judgment or order on review. (Code Civ. Proc., § 902.) A party is legally "aggrieved" for purposes of initiating an appeal only if her "rights or interests are injuriously affected by the judgment"; and the effect must be "immediate, pecuniary, and substantial[.]" (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 737 (County of Alameda).) Thus, for example, because "[a] party is not 'aggrieved' by a judgment or order rendered in his or her favor," he or she may not appeal from such a judgment or order. (Jones & Matson v. Hall (2007) 155 Cal.App.4th 1596, 1611 (Jones & Matson); accord, Nevada County Office of Education v. Riles (1983) 149 Cal.App.3d 767, 779.) B. Analysis
In her required statement of appealability (rule 8.204(a)(2)(B)), Appellant tells us in her brief on appeal:
"This appeal is from judgment, September 12, 2018, JOEL R. WOHLFEIL denied Diane Daniels due process of law unalienable Rights wrongful foreclosure, set aside Clerk's Unlawful Detainer Default, vacate Writ of Possession, and October 19, 2018, denial Motion for Reconsideration Writ of Possession; Code of Civil Procedure 904.1, subdivision (a)(1)." (Sic.)This statement is problematic, since Appellant limited her notice of appeal to the court's rulings on "11/2/18" and "11/16/18." Even though a notice of appeal "must be liberally construed," at a minimum it must "identif[y] the particular judgment or order being appealed." (Rule 8.100(a)(2).) Here, Appellant did not identify either the September 12, 2018 "judgment" or the October 19, 2018 "denial Motion for Reconsideration" in her notice of appeal.
Putting aside the inaccuracies in the statement of appealability in Appellant's brief, we consider whether we have jurisdiction based on the two orders Appellant did identify in her notice of appeal—i.e., the November 2 Order and the November 16 Order. As we explain, we lack jurisdiction to review each of the rulings in each of the orders from which Appellant appealed.
1. November 2 Order
The November 2 Order contains the following rulings: (1) Respondents' motion to set aside the August 2018 default judgment is granted; (2) Respondents' special demurrer to Appellant's fourth amended complaint is overruled; (3) Respondents' general demurrer to Appellant's fourth amended complaint is sustained with leave to file a fifth amended complaint to deal with a specified deficiency; and (4) Respondents' motion for an order determining Appellant to be a vexatious litigant and for a prefiling order regarding filing new litigation in California is denied without prejudice. As we explain, none is appealable.
The November 2 Order set aside the default judgment that Appellant obtained in August 2018. Code of Civil Procedure section 904.1, subdivision (a)(2) generally allows for an appeal from a final postjudgment order, but only where the underlying judgment is also final and appealable (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 628 (Elsea))—i.e., by a judgment that terminates the trial court proceedings by completely disposing of the matter in controversy (Dana Point, supra, 51 Cal.4th at p. 5). Here, however, as we explain, the August 2018 judgment which was set aside by the November 2 Order is neither final nor appealable.
An appeal may be taken from "an order made after a judgment made appealable by paragraph (1)." (Code Civ. Proc., § 904.1, subd. (a)(2).) Paragraph (1) provides that an appeal may be taken from a final judgment. (Id., subd. (a)(1) [an appeal may be taken from "a judgment, except an interlocutory judgment"].)
The August 2018 judgment is an unlawful detainer judgment for possession only. However, because the April 2018 unlawful detainer complaint sought actual damages, punitive damages, restitution, and declaratory relief in addition to possession of the Premises, the default judgment was neither final nor appealable. (See, e.g., First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860, 863 [appeal from unlawful detainer judgment for possession only treated as a writ petition, because such a judgment is a "nonappealable interlocutory order"].)
Moreover, even if Appellant's claims for relief other than possession of the Premises had been dismissed prior to entry of the judgment—as often happens in unlawful detainer actions, resulting in a final appealable judgment for possession only—the record in this case establishes without question that the judgment for possession in this case was not a final appealable judgment. Here, according to the ROA, at the time the clerk entered the default judgment on August 20, 2018, the operative complaint was a fourth amended complaint filed August 1, 2018—not the original complaint for unlawful detainer on which the default judgment was based. Under these circumstances, the default judgment did not terminate the trial court proceedings by completely disposing of the matter, since the default judgment related to a complaint that had been amended—and, thus, superseded (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130 ["an amended complaint supersedes all prior complaints"])—at least four times prior to entry of the judgment. As a matter of law, each superseded complaint " ' "ceases to perform any function as a pleading," ' " since each amended complaint " ' "supplants all prior complaints." ' " (LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 875, fn. 5, quoting Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884.) Accordingly, "[t]he amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect . . . as a basis for judgment." (State Compensation Ins. Fund, at p. 1130, italics added.)
In Northrop Corp. v. Chaparral Energy, Inc. (1985) 168 Cal.App.3d 725, for example, the landlord filed an unlawful detainer action and sought, in addition to possession of the premises, damages in the form of unpaid rent. (Id. at p. 727.) At the time of trial, because the landlord "wanted to regain possession as quickly as possible, and did not want the unlawful detainer judgment delayed by having to try the issues of rent and reasonable rental value," the landlord litigated only the issue of possession, presenting no evidence of damages. (Id. at p. 728.) Under these facts, the judgment for possession in the unlawful detainer action was appealable. (See id. at pp. 729-730.)
Since the ROA contains filings of two first amended complaints—one on April 24, 2018, and one on July 6, 2018—the August 1, 2018 complaint was likely a fifth amended complaint. The record on appeal does not contain copies of any of the amended complaints.
Indeed, after entry of the default judgment, the ROA contains at least another 165 entries (many with multiple documents)—i.e., filings by both Appellant and all three Respondents—and concludes with two April 2019 judgments in favor of Respondents. These 165 entries documents include filings related to: ex parte hearings; status conferences; multiple demurrers and a motion to strike brought by Respondents; Respondents' motion to deem Appellant a vexatious litigant; a civil case management conference; multiple motions for summary judgment and/or summary adjudication brought by Appellant; the filing of Appellant's fifth amended complaint; Appellant's motion to file a sixth amended complaint; discovery motions filed by Appellant; Respondents' motion to dismiss the case; and, most persuasively, the two April 2019 judgments in favor of Respondents. The ROA does not indicate the basis on which the court entered these judgments in favor of Respondents.
Because Appellant has not established that the August 2018 default judgment was appealable as a final judgment, Appellant cannot establish that the November 2 Order setting aside the default judgment is appealable as an order after entry of a final judgment. (Elsea, supra, 4 Cal.App.4th at p. 628; Neilsen v. Saylors (1956) 146 Cal.App.2d 139, 140.) For this reason, we lack jurisdiction to consider that portion of the November 2 Order setting aside the default judgment.
Next, the November 2 Order overruled in part and sustained with leave to amend in part Respondents' demurrers to Appellant's fourth amended complaint. However, " '[o]rders sustaining demurrers are not appealable' " (Roger v. County of Riverside (2020) 44 Cal.App.5th 510, 532), and Appellant is not aggrieved by that portion of the order overruling the demurrers (Jones & Matson, supra, 155 Cal.App.4th at p. 1611). For these reasons, we lack jurisdiction to consider the rulings on Respondents' demurrers. (Roger, at p. 532; Jones & Matson, at p. 1611.)
Finally, the November 2 Order denied without prejudice Respondents' motion for an order determining Appellant to be a vexatious litigant and for a prefiling order regarding filing new litigation in California. Since Appellant is not aggrieved by that portion of the order denying a motion brought by Respondents, we lack jurisdiction to consider that ruling. (Jones & Matson, supra, 155 Cal.App.4th at p. 1611.)
In sum, since none of the court's rulings in the November 2 Order is appealable, we lack jurisdiction to consider the order.
2. November 16 Order
The November 16 Order contains the following rulings: (1) The "[l]ockout scheduled for 11/16/18 is ordered quashed and vacated"; (2) Appellant is directed to file the fifth amended complaint that she previously served on Respondents; (3) Respondents are required to respond to the fifth amended complaint by a specified date; and (4) Appellant's ex parte application is denied without prejudice.
Initially, because none of those four rulings terminates any, let alone all, proceedings, none is a final order. (Dana Point, supra, 51 Cal.4th at p. 5.)
In addition, Appellant is not aggrieved either: (1) by being directed to file an amended complaint she previously already served; or (2) by a requirement that Respondents file their response to Appellant's amended complaint by a specified date; or (3) by the denial without prejudice of an ex parte application. (County of Alameda, supra, 5 Cal.3d at p. 737.)
Finally, "an order . . . dissolving an injunction" is appealable pursuant to Code of Civil Procedure section 904.1, subdivision (a)(6); and determining whether a particular order constitutes an appealable order dissolving an injunction "depends not on its title or the form of the order, but on ' "the substance and effect of the adjudication" ' " (PV Little Italy, LLC v. MetroWork Condominium Assn. (2012) 210 Cal.App.4th 132, 142-143 [order appealable, because its ' ' "substance and effect" ' " were to enjoin defendants]). In this regard, an argument can be made that the portion of the November 16 Order quashing and vacating the lockout scheduled for later the same day has the " ' "substance and effect" ' " of dissolving a prior order directing that Respondents be locked out—presumably, but without confirmation—of the Premises. However, by not providing the details of the original order locking out Respondents and an explanation or argument as to how the November 16 Order affected the original order, Appellant has not made any showing in support of her burden of establishing appellate jurisdiction to review the trial court's ruling.
In any event, even if jurisdiction existed, given the record on appeal and Appellant's brief in support of her appeal, Appellant would not have met her burden of establishing reversible error. The clerk's transcript does not contain a request for, or an opposition to, a ruling related to a lockout order. Moreover, Appellant's brief on appeal does not mention the November 16 Order or the ruling related to the lockout order—or even contain a citation to the record for the order—let alone advance an argument or provide legal authority as to how or why the trial court erred in issuing such a ruling. With such an inadequate showing, Appellant would have forfeited appellate review of the ruling. (See generally rule 8.204(a)(1)(B), (a)(1)(C), (a)(2)(C); United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 156 [" ' "[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived" ' "]; Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 589 ["An appellant who fails to cite accurately to the record forfeits the issue or argument on appeal that is presented without the record reference"]; Horowitz v. Noble (1978) 79 Cal.App.3d 120, 139 [" 'every brief should contain a legal argument with citation of authorities on the points made' "; and " '[i]f none is furnished on a particular point, the court may treat it as waived, and pass it without consideration' "]; County of Butte v. Emergency Medical Services Authority (2010) 187 Cal.App.4th 1175, 1196, fn. 7 [a contention not supported by citation to any legal authority "is thus forfeited as improperly presented"].)
Thus, since none of the court's rulings in the November 16 Order is appealable, we lack jurisdiction to consider the order.
III. DISPOSITION
We dismiss the appeal based on a lack of jurisdiction to review either the November 2 Order or the November 16 Order. Costs on appeal are denied. (Rule 8.278(a)(5).)
IRION, J. WE CONCUR: BENKE, Acting P. J. DATO, J.