Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. SCVSS111685. John H. Leahy and John P. Wade, Judges.
Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Judge Leahy granted the motion for terminating sanctions, struck appellant’s answer and entered his default.
Law Offices of Kimberly J. Laliberte, Kimberly J. Laliberte; and Ugo-Harris Peter Ejike for Defendant and Appellant.
Skousen & Skousen, James Allen, Robert James Skousen; and E. Joan Nelms for Plaintiff and Respondent.
OPINION
RICHLI, J.
In this action, plaintiff Octavio Madrigal alleged that defendant Leslie Fields breached a written agreement to sell certain real property to him. Fields defended in propria persona. Eventually, as a discovery sanction, the trial court struck Fields’s answer and entered his default. It then entered a default judgment for specific performance against Fields.
While this appeal was pending, Madrigal died, and Joan Nelms, as personal representative of his estate, was substituted for him. Further references to Madrigal will include Nelms as the context may require.
Fields contends, among other things, that the default judgment must be reversed because Madrigal’s complaint failed to state a claim for specific performance. In considering this contention, we discovered dicta in Molen v. Friedman (1998) 64 Cal.App.4th 1149 suggesting that a default judgment may stand, despite a defective complaint, unless the complaint is so defective that it fails to apprise the defendant of the nature of the plaintiff’s demand. We respectfully disagree with those dicta. We will hold that the complaint failed to state a claim, and we will therefore reverse the default judgment, though not the default.
I
FACTUAL BACKGROUND
Fields owned certain property in San Bernardino. This property included Fields’s house, as well as a pallet manufacturing and storage yard.
On July 30, 2002, Fields leased the property to Madrigal for a term through September 1, 2005. Fields reserved the right to continue to live in the house.
Sheila Fields was named as colessor. It seems likely, however, that she was not actually a co-owner of the property and that this provision was intended to allow her to receive rent payments if Fields were to die.
The lease included the following provision: “[T]otal buying price shall remain at $100,000.00 for the duration of this lease agreement[.]” Madrigal characterizes this as an “option to purchase the [p]roperty.” He also claims that he duly exercised the option.
On August 28, 2003, the parties entered into a written agreement providing that Fields was to sell and Madrigal was to purchase the property for $95,400. Madrigal was required to pay a $1,000 deposit into escrow, to obtain $19,080 in “additional financing,” and to obtain a loan for $76,320 of the purchase price within 17 days. (Capitalization omitted.) Madrigal was also required to give Fields, within seven days, a letter from a lender or a loan broker stating that he had prequalified for the loan. However, Fields could not cancel the agreement based on Madrigal’s failure to provide the letter or failure to obtain the loan, unless and until he gave Madrigal written notice to perform, plus at least 24 hours “to take the applicable action.”
This additional financing may or may not have consisted of Madrigal’s rent payments, applied as a credit against the purchase price.
According to Madrigal, he did obtain a loan. According to Fields, however, Madrigal did not obtain a loan and, in any event, did not provide a prequalification letter.
On November 20, 2003, according to Fields, he gave Madrigal a written notice to perform, which asserted that, among other things, Madrigal had not provided a prequalification letter and had not obtained a loan. However, also on November 20, 2003, Fields canceled the escrow, citing Madrigal’s “inability” to obtain a loan.
Meanwhile, according to Fields, Madrigal had stopped paying rent under the lease. Accordingly, on November 28, 2003, Fields terminated Madrigal’s tenancy.
II
TERMINATING DISCOVERY SANCTIONS
Fields contends that the trial court erred by striking his answer and entering his default based on his failure to comply with a discovery order.
A. Additional Factual and Procedural Background.
The trial court imposed terminating sanctions based on Fields’s disobedience of an order to respond, fully and without objection, to seven specified interrogatories. Those interrogatories, along with Fields’s responses to them, are attached as Appendix A, at pages 26-31.
1. Madrigal’s first motion to compel.
On May 27, 2004, Madrigal served form interrogatories.
On June 3, 2004, Fields served responses.
On July 7, 2004, Madrigal filed a motion to compel further responses.
On July 15, 2004, in response to Madrigal’s pending motion, Fields served additional responses.
On July 27, 2004, Fields filed an opposition to the motion to compel.
On August 2, 2004, the trial court denied the motion to compel as moot but ordered Fields to pay $2,210.10 in sanctions.
2. Madrigal’s second motion to compel.
On August 3, on September 1, and on October 11, 2004, counsel for Madrigal sent Fields successive “meet and confer” letters. Each time, Fields served additional responses.
On November 4, 2004, Madrigal filed a motion to compel further responses.
On November 30, 2004, the trial court granted the motion to compel; it ordered Fields to respond to seven specified interrogatories, fully and without objection, by December 20. It took the issue of sanctions under submission. On December 8, 2004, the trial court ordered Fields to pay $3,313 in sanctions.
3. Madrigal’s motion for terminating sanctions.
On December 15, 2004, Fields served additional responses.
On December 30, 2004, Madrigal filed a motion to strike Fields’s answer and enter his default, based on his failure to comply fully with the order to respond.
On January 26, 2005, the trial court gave Fields until February 2 “to fully answer [the] interrogatories”; it continued the hearing to February 8 “to determine if answers were received.” (Capitalization omitted.)
On January 31, 2005, Fields served additional responses. Although the responses themselves are not in the record, Madrigal’s counsel represented to the trial court that Fields had failed to properly answer at least some of the interrogatories that he had been ordered to answer. The trial court indicated that it would review the responses in chambers, then took the matter under submission.
On February 8, 2005, the trial court granted the motion, struck Fields’s answer, and entered his default. It stated: “Defendant has not responded to several discovery requests previously propounded. Other answers have been compound or incomplete. Though he may have done the best he can representing himself, the answers do not comply with legal requirements.[] Defendant has also responded with objections after having been ordered to submit responses without objection.... Finally, a substantial monetary sanction has been previously imposed without effect.[] Prior ineffectiveness of lesser sanctions indicates that a terminating sanction now is justified.” (Capitalization omitted.)
B. Analysis.
1. Motion for a “Deemed Admitted” Order.
Fields argues that Madrigal’s motion to have his requests for admissions deemed admitted was premature. So far, we have not mentioned this particular motion in our statement of facts, and for good reason the trial court denied it, as moot. Hence, Fields was not prejudiced.
2. Monetary sanctions in connection with Madrigal’s first motion to compel.
Next, Fields argues that, when the trial court denied Madrigal’s first motion to compel as moot, it erred by nevertheless awarding monetary sanctions.
Not so. Under former California Rules of Court, rule 341(a), which was then in effect, “[t]he court may award sanctions... in favor of a party who files a motion to compel discovery, even though no opposition to the motion was filed, or opposition to the motion was withdrawn, or the requested discovery was provided to the moving party after the motion was filed.” (See now Cal. Rules of Court, rule 3.1030(a).)
Fields did file an opposition; he did not simply offer to stipulate. Moreover, his opposition was unsuccessful, in the sense that the motion did force him to provide further responses. Fields has never explained, either below or in this appeal, why he did not just provide the same further responses in the “meet and confer” phase, before the motion was even filed. By failing to do so, he forced Madrigal to file the motion to compel and to incur the associated attorney fees. Accordingly, an award of monetary sanctions was appropriate.
Fields does not contend that the first motion to compel, or its denial as moot, had any preclusive effect on the subsequent proceedings. We deem any such contention waived.
3. Order granting terminating sanctions.
“‘“‘The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. [Citations.] Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply... and (2) the failure must be wilful....’”’ [Citation.]” (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.)
Fields asserts that “[h]is last responses [citation], while brief and not couched in legal terms[,] were at least minimally sufficient.” Not so. He had been ordered to respond fully and without objection. Nevertheless, he objected to interrogatories No. 2.7 and 17.1. His response to interrogatory No. 15.1, which asked him to disclose evidence regarding each denial and affirmative defense in his answer, merely incorporated his entire answer by reference. In response to interrogatories No. 14.1 and 50.2, which asked him to identify and to disclose evidence regarding every statutory violation and every breach of the purchase agreement, he flatly asserted that Madrigal had violated every provision of the purchase agreement; he did not provide dates and names of witnesses, as required. Only Fields’s response to interrogatory No. 50.4 was proper.
Fields also argues that his noncompliance was not willful. He relies on the trial court’s comment that, “[t]hough he may have done the best he can representing himself, the answers do not comply with legal requirements.” (Italics added, capitalization omitted.) However, this was not the equivalent of a finding that Fields did not act willfully. He was on notice that his previous responses were inadequate. Counsel for Madrigal had sent him numerous “meet and confer” letters. Moreover, by granting the motion to compel, the trial court had found that the previous responses were inadequate. Nevertheless, in most instances, Fields simply reiterated his previous responses. Assuming, for the moment, that Fields did not understand why his responses were inadequate, he had a duty to find out. He could have consulted with a friend, gone to a law library, or sought free legal aid. There was no evidence that he did any of these things. If he was ignorant, he was willfully ignorant. Moreover, the trial court had ordered Fields to answer “without objection.” This, at least, should have been clear, even to a nonlawyer. Nevertheless, he objected. Thus, the trial court reasonably could conclude that Fields acted willfully.
Finally, Fields argues that the trial court could not order terminating sanctions because there had been only one order compelling further responses. There is no requirement of multiple orders. Once “a party... fails to obey an order compelling answers, the court may make those orders that are just, including the imposition of... a terminating sanction....” (Code Civ. Proc., § 2030.290, subd. (c).)
The discovery statutes in the Code of Civil Procedure were renumbered effective July 1, 2005, without any change in wording that is significant for our purposes. Throughout this opinion, we will use the current numbers.
“A decision to impose the ultimate sanction a judgment in the opposing party’s favor should not be made lightly. ‘But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.’” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal.App.4th 285, 297, fn. omitted.) Here, the trial court had awarded monetary sanctions twice, without any apparent result. Fields does not even argue that some lesser sanction, such an evidence sanction or an issue sanction (see Code Civ. Proc., §§ 2023.030, subds. (b) & (c), 2030.300, subd. (e)), would have been appropriate. Because the scope of the unanswered interrogatories encompassed the entirety of Fields’s case, the trial court was not required to impose any lesser sanction.
We therefore conclude that the trial court did not err by striking Fields’s answer and entering his default.
III
THE VALIDITY OF THE DEFAULT JUDGMENT
Fields contends that the default judgment for specific performance was improperly entered.
A. Additional Factual and Procedural Background.
On November 1, 2005, after Fields’s default had been entered as a discovery sanction, Madrigal filed an ex parte application for entry of a default judgment. In it, he stated that he had entered into a contract to sell the property to a third party; the sale was in escrow and ready to close.
Madrigal did not offer any evidence that his claim for specific performance was meritorious. In his declaration, he merely stated that Fields had entered into a written agreement to sell him the property, and he attached a copy of the agreement.
On November 14, 2005, the trial court held a hearing on the ex parte application. Madrigal did not offer any evidence at the hearing. The next day, November 15, 2005, the trial court entered a default judgment for specific performance.
Fields filed a premature notice of appeal, which we have deemed to be an appeal from the final default judgment.
B. Analysis.
A default judgment is appealable. (Misic v. Segars (1995) 37 Cal.App.4th 1149, 1153-1154.) In general, however, an “appeal from the default judgment presents for review only the questions of jurisdiction and the sufficiency of the pleadings. [Citations.]” (Corona v. Lundigan (1984) 158 Cal.App.3d 764, 766-767; accord, Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 294.) This is because “‘[t]he judgment by default is said to “confess” the material facts alleged by plaintiff, i.e., the defendant’s failure to answer has the same effect as an express admission of the matters well pleaded in the complaint.’ [Citation.]” (Beeman v. Burling (1990) 216 Cal.App.3d 1586, 1597.) “[E]ven a defaulting party may challenge the sufficiency of a complaint, because the default only admits those facts that are well pleaded. [Citation.]” (Buck v. Morrossis (1952) 114 Cal.App.2d 461, 466.) Thus, “[i]t is well established a default judgment cannot properly be based on a complaint which fails to state a cause of action against the party defaulted....” (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829.)
Molen v. Friedman, supra, 64 Cal.App.4th 1149, however, questioned this rule. Molen discussed what it considered to be two conflicting “lines of cases.” (Id. at p. 1154.) The first line of cases consisted of Court of Appeal cases such as Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742 and Rose v. Lawton (1963) 215 Cal.App.2d 18. These cases were consistent with the rule, as stated above, that a default judgment must be reversed if the complaint fails to state a cause of action. (Molen,at pp. 1153-1154.)
The second line of cases consisted of Christerson v. French (1919) 180 Cal. 523 and other California Supreme court cases cited in Christerson. (Molen v. Friedman, supra, 64 Cal.App.4th at p. 1154.) According to Molen, these “[e]arly California Supreme Court opinions establish the doctrine that: ‘... a judgment is not void if the court has jurisdiction of the parties and of the subject matter, irrespective of whether or not the complaint states a cause of action so long as it apprises the defendant of the nature of the plaintiff’s demand. [Citations.]’ [Citation.]” (Ibid., quoting Christerson, at pp. 525-526.)
Molen criticized the first line of cases for “fail[ing] to recognize the tension between [their holdings] and the Supreme Court opinions which hold that to support a default judgment the complaint need not state a cause of action so long as it apprises the defendant of the nature of the plaintiff’s demand. [Citation.]” (Molen v. Friedman, supra, 64 Cal.App.4th at p. 1156.)
Ultimately, however, despite this discussion, Molen declined to choose between the two lines of cases. Instead, it distinguished both lines of cases from the case before it. According to Molen, “Christerson involved a direct attack upon the default judgment. [O]f the cases relied upon by Christerson, some involve a direct attack (Blondeau v. Snyder (1892) 95 Cal. 521 [31 P. 591]; Canadian etc. Co. v. Carlita etc. Co. (1903) 140 Cal. 672 [74 P. 301]; California Casket Co. v. McGinn (1909) 10 Cal.App. 5 [100 P. 1077])....” (Molen v. Friedman, supra, 64 Cal.App.4th at pp. 1154-1155, fn. omitted.) By contrast, Molen itself involved “a collateral attack on the default judgment.” (Id. at pp. 1154-1155; see also id. at p. 1152.) Molen concluded that “a collateral attack will not lie... for failure of the complaint to state a cause of action [citations].” (Id. at pp. 1156-1157.)
We believe that Molen went astray by characterizing Christerson and some of the cases on which Christerson relied as direct-attack cases.
An appeal is one kind of direct attack. (Black’s Law Dict. (6th ed. 1990) p. 459, col. 2; see Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1415.) The California Supreme Court has repeatedly held that on appeal a default judgment must be reversed if the complaint fails to state a cause of action. (Lynn v. Knob Hill Improvement Co. (1917) 177 Cal. 56, 59-61; Barney v. Vigoreaux (1892) 92 Cal. 631, 632 [“[t]he omission to allege in the complaint that some part of the said note had not been paid constituted a fatal defect, for which the [default] judgment must be reversed”]; Harmon v. Ashmead (1882) 60 Cal. 439, 441-442 [“a defective cause of action is not cured by failure to answer”]; Rhoda v. Alameda Co. (1877) 52 Cal. 350, 351-352; Choynski v. Cohen (1870) 39 Cal. 501, 502 [“[i]f the complaint exhibits no cause of action, even a judgment by default will be reversed on appeal”]; see also Martin v. Lawrence (1909) 156 Cal. 191, 193 [defaulting defendant can argue, on appeal, “that the complaint is obnoxious to a general demurrer”].)
A motion to set aside a judgment under Code of Civil Procedure section 473, subdivision (b) is also a direct attack. (See Warga v. Cooper (1996) 44 Cal.App.4th 371, 376.) However, such a motion must be brought within six months after entry of the judgment. (Code Civ. Proc., § 473, subd. (b).) “A motion to vacate a judgment, made after the expiration of the six-month period allowed in section 473 of the Code of Civil Procedure for a motion to set aside a default judgment, is governed by the rules applicable to collateral attack. [Citations.] In the absence of extrinsic fraud or mistake [citation] a judgment so attacked cannot be set aside unless it is void on its face. [Citations.]” (Wells Fargo & Co. v. City etc. of S.F. (1944) 25 Cal.2d 37, 40, italics added; accord, Adoption of Matthew B. (1991) 232 Cal.App.3d 1239, 1268, fn. 18; National Diversified Services, Inc. v. Bernstein (1985) 168 Cal.App.3d 410, 416.)
Molen characterized Christerson as a direct-attack case. In Christerson, the default judgment was entered on August 2. (Christerson v. French, supra, 180 Cal. at p. 524.) The defendant moved to set it aside on the following March 14 (ibid.) more than seven months later. The defendant therefore argued that “the judgment is void because the complaint fails to state a cause of action.” (Id. at p. 525.) The court responded: “It is well established that a judgment is not void if the court has jurisdiction of the parties and of the subject matter, irrespective of whether or not the complaint states a cause of action, so long as it apprises the defendant of the nature of the plaintiff’s demand. [Citations.] We think the complaint herein sufficiently states a cause of action to inform the defendant of the nature of the claim against him and to give the court jurisdiction of the cause.” (Id. at pp. 525-526.) We conclude that, although Christerson technically may have involved a direct attack, it involved the rules that govern a collateral attack.
Molen also characterized three of the cases cited in Christerson as “direct attack” cases (Molen v. Friedman, supra, 64 Cal.App.4th at p. 1154) Blondeau v. Snyder, supra, 95 Cal. 521, Canadian etc. Co. v. Clarita etc. Co., supra, 140 Cal. 672, and California Casket Co. v. McGinn, supra, 10 Cal.App. 5. Again, that is not correct.
In Blondeau, one of the defendants brought a motion for relief two and a half years after the entry of the default judgment. (Blondeau v. Snyder, supra, 95 Cal. at p. 522.) She argued that the default judgment was “absolutely void” because the complaint had failed to state any facts showing that she was personally liable. (Id. at p. 523.) The appellate court disagreed: “The error could have been corrected upon appeal from the judgment, or upon a proper showing by motion, if it had been made within the time limited by section 473 of the Code of Civil Procedure; but it is now too late to do so by motion.” (Ibid., italics added.)
Similarly, in Canadian, one of the defendants moved to vacate the default judgment 18 months after it had been entered, arguing that it was “‘void.’” (Canadian etc. Co. v. Clarita etc. Co., supra, 140 Cal. at p. 673.) The court held that it was “immaterial” whether the complaint stated a cause of action, because “the judgment is not for that reason void.” (Id. at p. 677.)
Finally, in California Casket, the plaintiff claimed to have served the summons and complaint on October 31; it obtained a default judgment on November 12. (California Casket Co. v. McGinn, supra, 10 Cal.App. at p. 6.) The defendants claimed that they had not actually been served until November 1, so that their default could not be have been entered until November 13. On May 13 (one day after the six-month deadline), the defendants filed a motion to set it aside. (Id. at pp. 7-8.) The appellate court was careful to note that “[t]he motion was not made under section 473 of the Code of Civil Procedure.... [The defendants] place their entire reliance upon the claim that the court was without jurisdiction to enter the judgment....” (Id. at p. 8.) It added: “The entry of the judgment in this case was at most an irregularity; and, no doubt, if defendants had moved promptly or within a reasonable time,... the court would have been authorized to give them relief....” (Id. at p. 9, italics added.) The court held: “The court then having jurisdiction of the defendants, the entry of the judgment, being premature, was irregular, but not without jurisdiction.” (Ibid.)
In sum, then, the actual holding of Molen is unexceptionable; on a collateral attack, a default judgment cannot be set aside merely because the complaint fails to state a cause of action. The same is true in a direct attack that is governed by the rules applicable to a collateral attack. The dicta in Molen, however, mistakenly suggest that the same rule would apply in a true direct attack, such as an appeal. To the contrary, the law is that on appeal, if the complaint fails to state a cause of action, a default judgment must be reversed.
The principles applicable to default judgments in general apply fully in this case, even though Fields’s default was entered as a discovery sanction. The discovery sanctions available to a trial court include not only an order striking the noncompliant party’s pleading (Code Civ. Proc., § 2023.030, subd. (d)(1)), but also the entry of a default judgment against the noncompliant party (id., subd. (d)(4)). We may assume, without deciding, that different rules might apply to such a default judgment. Here, however, Madrigal did not request a default judgment as a discovery sanction. The only nonmonetary sanction he requested was an order striking Fields’s answer and entering his default; accordingly, that was the only nonmonetary sanction that the trial court granted. Thereafter, the entry of a default judgment was subject to standard principles.
We turn, then, to the sufficiency of Madrigal’s complaint. “A cause of action for breach of contract requires pleading of a contract, plaintiff’s performance or excuse for failure to perform, defendant’s breach and damage to plaintiff resulting therefrom. [Citation.]” (McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) Ordinarily, the plaintiff’s performance is easy to allege; the plaintiff need only “state[] generally that [he] duly performed all the conditions on his part....” (Code Civ. Proc., § 457.) Alas, we find no such allegation in Madrigal’s complaint. He does allege that he “had secured a loan to purchase the Property....” He does not allege, however, that he performed any of the other conditions of the purchase and sale agreement or that he had any excuse for nonperformance.
In addition, “to obtain a judgment for specific performance the plaintiff must not only prove that there was consideration, but that it was adequate, and, in addition, that the contract was ‘just and reasonable.’ [Citations.]” (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 747, p. 205, quoting Civ. Code, § 3391, subd. 2.) “The cases laying down the rule requiring allegations of adequate consideration and a just and reasonable contract [citation] have also made it a requirement of pleading facts. They have condemned formal allegations to the effect that ‘the consideration was adequate’ or that ‘the contract was just and reasonable.’ [Citations.]” (5 Witkin, supra, § 749, pp. 206-207.) Once again, we find no such allegation in Madrigal’s complaint. Without at least some allegation regarding the value of the property, we cannot say, based on the attached purchase and sale agreement alone, that the consideration was adequate.
We therefore conclude that the default judgment for specific performance must be reversed. Accordingly, we need not discuss Fields’s alternative contention that Madrigal failed to supply the trial court with sufficient evidence and other supporting documentation at the “prove-up” hearing.
IV
AWARD OF ATTORNEY FEES
Fields contends that the trial court erred by awarding contractual attorney fees to Madrigal because the complaint did not adequately allege either the entitlement to or the amount of attorney fees.
In part III, ante, we held that the default judgment must be reversed. Madrigal is no longer the prevailing party; for this reason, we must also reverse the award of attorney fees. We therefore decline to consider Fields’s specific contention. (See Samples v. Brown (2007) 146 Cal.App.4th 787, 811.)
V
VEXATIOUS LITIGANT ORDER
Fields contends that the trial court erred by declaring him a vexatious litigant. We decline to consider this contention, because we conclude that Fields failed to file a timely appeal from the vexatious litigant order.
The trial court can require a vexatious litigant to post security; if the security is not posted, it can dismiss the litigation. (Code Civ. Proc., §§ 391.1-391.4.) It can also enter a prefiling order prohibiting a vexatious litigant from filing any new litigation in propria persona without first obtaining leave from the presiding judge. (Code Civ. Proc., § 391.7.)
Ordinarily, an order requiring a vexatious litigant to post security is not appealable; it is reviewable only on appeal from the subsequent final judgment. (Childs v. PaineWebber Incorporated (1994) 29 Cal.App.4th 982, 985, fn. 1; Roston v. Edwards (1982) 127 Cal.App.3d 842, 846 [Fourth Dist., Div. Two]; Horton v. City of Beverly Hills (1968) 261 Cal.App.2d 306, 307-308.) However, if a judgment has already been entered, such a vexatious litigant order is separately appealable as an order after judgment. (Code Civ. Proc., § 904.1, subd. (a)(2).) Moreover, it is at least arguable that a prefiling order unlike an order requiring security is separately appealable as an injunction. (Id., subd. (a)(6); but see People v. Harrison (2001) 92 Cal.App.4th 780, 785 , fn. 6; In re Bittaker (1997) 55 Cal.App.4th 1004, 1008 [dictum].)
As noted earlier, the trial court entered the default judgment on November 15, 2005. On January 4, 2006, it found Fields to be a vexatious litigant and entered a prefiling order as a minute order. It entered a formal written prefiling order on January 9, 2006.
Meanwhile, Fields filed four documents, each entitled “Notice of Appeal Combined with Notice Designating Clerk’s and Reporter’s Transcript[s]” on October 31, 2005, November 2, 2005, December 2, 2005, and February 17, 2006. (Capitalization omitted.) Thus, only the fourth and last of these documents was filed after the trial court had made a vexatious litigant ruling.
The first two documents stated that Fields was initiating an appeal from certain interlocutory orders entered in October 2005. However, they did also note that Madrigal had filed an application for the entry of a final judgment and that “it has been sent to Judge Wade’s clerk’s office for processing....” Accordingly, we deemed the first notice of appeal to be a valid, although premature, appeal from the judgment. (Former Cal. Rules of Court, rule 2(e); see now Cal. Rules of Court, rule 8.104(e).)
The last two documents, by contrast, did not say that Fields was initiating an appeal from anything. They merely requested that additional records be included in the clerk’s and reporter’s transcripts. Thus, they were, in substance, amended or augmented transcript designations.
Under former rule 1(a)(2) of the California Rules of Court, “The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed.” (See now Cal. Rules of Court, rule 8.100(a)(2).) “While the notice... is to be liberally construed..., the rule itself requires a statement showing, at least in substance, that an appeal is being taken by or through the means of that notice. The clear meaning seems to be that the notice of appeal provided for shall substantially state a present intention, and shall show that the party is, by means of that notice, presently appealing from some specified thing. The notice to prepare transcripts was clearly not intended as a compliance with this rule. In the face of its language and expressed purpose it should not be construed into an additional and new notice of appeal. An unexpressed intention or desire to appeal from the judgment should not be read into that notice under the guise of a liberal construction. The most that can be said concerning this notice, respecting an appeal from the judgment, is that the one who prepared it thought he had theretofore appealed from the judgment by appealing from the verdict.” (Estate of Roberson (1952) 114 Cal.App.2d 267, 270, disapproved on other grounds in Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 22, fn. 1.)
Fields’s appeal from the default judgment could not encompass the vexatious litigant order, which had not yet been entered or even announced. Once the vexatious litigant order had been entered, he did not file another notice of appeal. It follows that we lack jurisdiction to review the order.
We hasten to add that the failure to file the necessary notice of appeal appears to be entirely attributable to Fields, and not to his present appellate counsel, who has assisted not only her client but also this court by her exemplary representation. On January 9, 2006, the trial court mailed a file-stamped copy of the vexatious litigant order. Evidently Fields had actual notice of the order as well as of its entry date, because he mentioned both in a document that he filed on February 17, 2006. Accordingly, Field’s time to appeal from the vexatious litigant order expired, at the latest, on March 10, 2006. (Former Cal. Rules of Court, rule 2(a)(1); see now Cal. Rules of Court, rule 8.104(a)(1).) At that point, Fields was still in propria persona.
VI
DISPOSITION
Fields’s default is affirmed. The default judgment against Fields, however, is reversed. The order awarding Madrigal attorney fees against Fields is also reversed. In the interests of justice, both sides shall bear their own costs on appeal.
We call the attention of the parties and the trial court to rule 3.110(h) of the California Rules of Court, which provides: “When a default is entered, the party who requested the entry of default must obtain a default judgment against the defaulting party within 45 days after the default was entered, unless the court has granted an extension of time. The court may issue an order to show cause why sanctions should not be imposed if that party fails to obtain entry of judgment against a defaulting party or to request an extension of time to apply for a default judgment within that time.” Upon the issuance of our remittitur, the situation will be that a default has been entered, but a default judgment has not yet been obtained.
In light of our holding, however, Madrigal cannot obtain a default judgment based on the current operative complaint. If he is going to prosecute this action at all, he will have to file an amended complaint, which will effectively vacate the default. (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1744.)
In the meantime, the 45-day clock will be ticking. As Madrigal will have had this opinion in his hands for at least 60 days before our remittitur issues, we see no reason why he cannot file an amended complaint before the additional 45 days run out. If, however, he claims to have some problem in doing so, he can seek an extension of time in the trial court.
The trial court is hereby directed that, if Madrigal fails to amend or seek leave to amend the complaint within 45 days after the issuance of our remittitur, or within such an extension of the 45 days as the trial court may grant, it must issue an order to show cause why sanctions should not be imposed. The trial court is further directed that, in the absence of a showing to the contrary, the appropriate sanction would be dismissal of the entire action with prejudice.
We concur: HOLLENHORST, Acting P.J., GAUT, J.
INTERROGATORY NO. 2.7
Interrogatory: “State:
“(a) the name and ADDRESS of each school or other academic or vocational institution you have attended, beginning with high school;
“(b) the dates you attended;
“(c) the highest grade level you have completed; and
“(d) the degrees received.”
First Response: “Object....”
Second Response: “Graduated from California State University, San Bernardino.”
Third Response: “Object. Outside discovery CCP 2017.”
Fourth Response: “Object. Question outside scope of CCP 2017.”
Fifth Response: “Defendant objects... and refuses to answer.... [O]utside the scope of discovery provided in CCP 2017.”
Sixth Response: “Object. Information is outside the scope of discovery provided in CCP 2017.”
INTERROGATORY NO. 14.1
Interrogatory: “14.1 Do YOU OR ANYONE ACTING ON YOUR BEHALF contend that any PERSON involved in the INCIDENT violated any statute, ordinance, or regulation and that the violation was a legal (proximate) cause of the INCIDENT? If so, identify the name, ADDRESS, and telephone number of each PERSON and the statute, ordinance, or regulation that was violated.”
First Response: “No.” (Misnumbered 14.0.)
Second Response: “Plaintiff removed back porch without city permit.” (Misnumbered 14.0.)
Third Response: “Plaintiff removed back porch from property without plaintiff’s [sic] permission or a city permit.”
Fourth Response: “Plaintiff removed defendant’s back porch without defendant’s permission or the required permit from the San Bernardino City Code Enforcement division.”
Fifth Response: “Yes. Plaintiff Octavio Madrigal violated all of the requirements of the Commercial Lease Agreement and the [R]esidential Purchase Agreement.”
Sixth Response: “Yes. Plaintiff Octavio Madrigal violated all of the requirements of the Commercial Lease Agreement and the Residential Purchase Agreement.”
INTERROGATORY NO. 15.1
Interrogatory: “Identify each denial of a material allegation and each special or affirmative defense in your pleadings and for each:
“(a) state all facts upon which you base the denial or special or affirmative defense;
“(b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and
“(c) identify all DOCUMENTS and other tangible things that support your denial or special or affirmative defense, and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT.”
First Response: “Information previously provided....”
Second Response: “See defendant’s first Admended [sic] Response to plaintiff’s complaint.” (Misnumbered 15.0.)
Third Response: “This information is contained in defendant’s first amended response to plaintiff’s original file.”
Fourth Response: “There is no proof that defendant breached any item of the Purchase Agreement.
“(a) Plaintiff did not accomplish any of the performance requirements of the Purchase Agreement.
“(b) All parties to this case have knowledge of these facts.
“(c) Defendant’s First Admended [sic] Response to Plaintiff’s Complaint, the Purchase Agreement, and photographs taken by defendant are the only tangible items that support my denial and affirmative defense.”
Fifth Response: “This information is lengthy and has already been provided to you as Defendant’s First Admended [sic] Response to Complaint on 04-05-04.”
Sixth Response: “This information is lengthy and has already been provided to you as Defendant’s First Amended Response....”
INTERROGATORY NO. 17.1
Interrogatory: “Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission:
(a) state the number of the request;
(b) state all facts upon which you base your response;
(c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and
(d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.”
First Response: “No.” (Misnumbered 17.0.)
Second Response: “No. Responses marked [i]ndividually, [d]eny, yes, or no.”
Third Response: “Each admission is an unqualified admission.”
Fourth Response: “My response to each request for admission served with these interrogatories is an unqualified response.”
Fifth Response: “This question is vague. I will not change my last response. This question is outside the scope of discovery provided in CCP 2017.”
Sixth Response: “Object. This question is not relevant and will not lead to discovery. CCP 2107.”
INTERROGATORY NO. 50.2
Interrogatory: “Was there a breach of any agreement alleged in the pleadings? If so, for each breach describe and give the date of every act or omission that you claim is the breach of the agreement.”
First Response: “Information previously provided....”
Second Response: “Yes. All breaches occurred on or before 01-09-04.”
Third Response: “Plaintiff complied with none of the requirements of the [p]urchase agreement. Defendant has never been provided any documents to the contrary. All breaches occurred before 01-09-04.”
Fourth Response: “Plaintiff breached all of the performance requirements of the Purchase Agreement. Not one piece of paper was ever provided to defendant from anyone regarding this purchase agreement, neither was there verbal contact from the realtor or escrow office.”
Fifth Response: None.
Sixth Response: “Yes. Same answer as interrogative [sic] 14.1.”
INTERROGATORY NO. 50.4
Interrogatory: “Was any agreement alleged in the pleadings terminated by mutual agreement, release, accord and satisfaction, or novation? If so, identify each agreement terminated, the date of termination, and the basis of the termination.”
First Response: “Information previously provided....”
Second Response: “No.”
Third Response: “The agreement was terminated by plaintiff’s failure to meet any of the performance dates contained in the agreement.”
Fourth Response: “The purchase agreement authorized the seller to terminate the agreement for non-performance at the seller[’]s discretion.”
Fifth Response: “Purchase Agreement was terminated 11-20-03 due to Plaintiff’s failure to comply with ANY of the requirements of the agreement. If you have proof to the contrary, please provide it to me.”
Sixth Response: “No.”
Judge Wade awarded attorney fees against appellant, entered the default judgment, and declared appellant to be a vexatious litigant.