Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of mandate., Super. Ct. Nos. INC028696 & INC063111, Randall Donald White, Judge.
Donald A. Carstens in pro. per.
No appearance by respondent.
Severson & Werson, and Jan T. Chilton, John B. Sullivan, and Regina J. McClendon for Real Parties in Interest.
OPINION
HOLLENHORST, Acting P. J.
In this matter, we have reviewed the petition and the opposition filed by real parties in interest. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
Although the first two actions filed by petitioner have been consolidated—at the request of real parties in interest, we observe—it is clear that the factual matrices are quite distinct. The first action (INC028696) was based on real parties in interest’s first foreclosure relating to the subject property. Although the complaint in the second action (INC063111) included background allegations relating to the earlier occurrences, it clearly sought relief as to the second foreclosure, which occurred four years after the first. There is no reason why the filing of the second action in 2006 or the consolidation of the two matters in 2007 should affect a default in the first action entered in 2003.
Real parties in interest’s reliance on Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127 is misplaced. The pertinent issue in that case was whether a defendant who was named, but never served and never separately appeared in a first action, but who appeared in a consolidated second action and litigated all issues at trial, had effectively submitted to the court’s jurisdiction in the first action. Nothing in that case supports the idea that a plaintiff who files a second related, but independent, action against the same defendants “opens up” an existing and final default in the first action. It should be apparent that the fact of the consolidation does nothing to change this result because the consolidation was sought by real parties in interest and opposed by petitioner. Real parties in interest long ago failed in their efforts to have the default vacated and it is now impregnable in the trial court.
We reject the argument that petitioner has “waived” any right to enforce his default by filing a fourth amended complaint, which includes allegations relating to the first case. Our review of the exhibits makes it clear that petitioner was acting in response to the order vacating the defaults and was merely unifying the pleadings in the event that his challenge to that order failed.
Real parties in interest’s argument to the effect that the purported default judgment entered in August 2007 was premature has merit. (See Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725.) The “judgment” did not resolve all issues in the consolidated cases and the trial court in fact declined even to resolve the issue of quiet title raised in the first action. Hence, the matter is not yet appropriate for “judgment.” However, this does not mean that the trial court could not validly determine the amount of damages appropriate in the first case and record that figure for inclusion in a default judgment when all proceedings are concluded.
DISPOSITION
Accordingly, the petition for writ of mandate is granted in part and denied in part. Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order setting aside the default of real parties in interest. We uphold the order vacating the default judgment, but find that the sum awarded at the “prove-up” hearing is a valid determination of damages.
Petitioner to recover his costs.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
We concur: McKINSTER, J., KING, J.