Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Super. Ct. No. 06CC06466 Charles Margines, Judge.
Law Office of Timothy P. Peabody and Timothy P. Peabody for Cross-defendant and Appellant.
Law Offices of Michael Jay Berger and Michael Jay Berger for Cross-complainants and Respondents.
OPINION
MOORE, J.
A self-represented plaintiff failed to file a responsive pleading to a cross-complaint. The court entered a default judgment against him. The plaintiff then sought to set aside the default judgment, claiming he had been unaware of the proper deadline for filing a responsive pleading. He also contended that the court had violated Code of Civil Procedure section 585, subdivision (e) in entering a default judgment on the cross-complaint when the complaint, arising out of the same transaction, was still pending. The court denied the plaintiff’s set aside motion and the plaintiff appeals. We reverse the order of the trial court.
I
FACTS
Frank Tello dba Monte Verde Landscape (Tello), a self-represented litigant, filed a form complaint for breach of contract against James Ivor Tredwell dba ISBS Group, seeking $52,567.54 in damages. James Tredwell dba James Tredwell Contractor (Tredwell) and the ISBS Group filed a cross-complaint against Tello, Congregation Eilat, and Neal Linson. The ISBS Group asserted causes of action against Tello for breach of contract, fraud, conversion, money had and received, and negligence arising out of a statutory violation. The causes of action allegedly arose out of a landscape construction agreement with Tello. The ISBS Group sought total damages exceeding $169,000, plus interest and other items.
In respondents’ brief, Tredwell and the ISBS Group represent that Tredwell was the construction manager of a construction project for Congregation Eilat and that the ISBS Group was the facilities manager. They also represent that James Tredwell was the president of the ISBS Group. While they filed a respondents’ brief together, the judgment is in favor of the ISBS Group only, not Tredwell.
The cross-complaint was served on Tello by mail on June 22, 2006. The summons stated on the face thereof: “You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court . . . . If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court.” Tello did not file a responsive pleading.
Tredwell and the ISBS Group filed a request for entry of default dated July 31, 2006. The request was served on Tello, by mail, on that same date. Default was entered on August 1, 2006. On August 22, 2006, Tredwell and the ISBS Group filed a request for court judgment, in which they sought a total judgment in the amount of $184,784. A copy of the request was served on Tello that same date, again by mail. On September 27, 2006, judgment was entered in favor of the ISBS Group, and against Tello, in the amount of $184,784.16.
On October 19, 2006, Tello filed a Code of Civil Procedure section 473 motion to set aside the default judgment. He urged the court to set aside the default judgment on two grounds: (1) he had been served with an unconformed copy of the cross-complaint and due to his “mistaken belief, inadvertence, surprise, or excusable neglect, [he] believed . . . that a conformed copy needed to be filed and served upon [him] prior to any response being required . . . .;” and (2) the default judgment was entered in contravention of Code of Civil Procedure section 585, subdivision (e).
The court denied Tello’s motion. Tello appeals.
II
DISCUSSION
A. PRELIMINARY MATTERS:
(1) Appellate Court Proceedings
Oral argument in this matter took place in this court on September 18, 2007. At oral argument, the court expressed concern that it had no jurisdiction to hear the appeal due to the one final judgment rule, inasmuch as it appeared from the record that the complaint was still pending when judgment was entered on the cross-complaint. The parties were asked to address the issue. They represented that, by the time of oral argument, the complaint had been dismissed, although they acknowledged that no copy of a judgment of dismissal of the complaint was contained in the record on appeal. At the conclusion of oral argument, the matter was submitted.
By order of October 11, 2007, this court vacated submission of the matter and requested further briefing. This court asked the parties to provide supplemental briefing on four points, including whether the appeal had to be dismissed under the one final judgment rule and “whether the trial court erred in entering a judgment on the cross-complaint because a separate judgment could not have been ‘properly awarded on that cross-complaint,’ within the meaning of Code of Civil Procedure section 585, subdivision (e), given the nature of the then pending complaint.” This court also asked the parties to provide a copy of the dismissal of the complaint, if indeed the complaint had been dismissed.
The parties filed supplemental letter briefs. In addition, the ISBS Group filed a motion to augment, which this court granted. Attached to the motion to augment was a copy of an August 8, 2007 order granting a motion to strike Tello’s second amended complaint, without leave to amend. After granting the motion to augment, this court ordered the submission of the matter.
Upon further consideration, this court again vacated submission, by order of February 21, 2008. In that order, the court noted that no party had provided this court with a copy of a judgment of dismissal of the complaint. The court, citing Fleuret v. Hale Constr. Co. (1970) 12 Cal.App.3d 227, informed the parties that if a certified copy of a judgment of dismissal of the complaint were not lodged with this court by March 7, 2008, the appeal would be dismissed for lack of jurisdiction. On March 6, 2008, Tello submitted a certified copy of a March 5, 2008 judgment of dismissal of the second amended complaint. On March 11, 2008, the matter was again resubmitted.
(2) Jurisdiction
Fleuret v. Hale Constr. Co., supra, 12 Cal.App.3d 227 makes clear that, as a general rule, an appeal from a judgment on a cross-complaint is premature and nonappealable when the complaint is still pending. The rule is applicable in a case such as this where “[t]he cross-complaint involve[d] the same contract and same transaction as the complaint” and, consequently, the rights of the parties had not been fully determined prior to the entry of judgment of dismissal of the second amended complaint. (Id. at p. 230.) However, “[t]he case has been fully briefed and argued by both sides and to dismiss the appeal at this stage ‘would be a waste of judicial and litigant resources. Therefore, in the interests of justice and to prevent unnecessary delay we will deem” the appeal in this matter to have been taken after the entry of the judgment of dismissal of the second amended complaint. (Holland v. Thacher (1988) 199 Cal.App.3d 924, 927, fn. 1.) Therefore, the one final judgment rule will not bar the hearing of this appeal.
B. MOTION TO VACATE:
(1) Code of Civil Procedure Section 473
Tello contends that the trial erred in failing to grant relief under Code of Civil Procedure section 473. Subdivision (b) thereof provides in pertinent part as follows: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. . . .” (Code Civ. Proc., § 473, subd. (b).) We review the order denying the motion to vacate under the abuse of discretion standard. (Anderson v. Sherman (1981) 125 Cal.App.3d 228, 237.)
(2) Grounds
As stated above, Tello sought relief on two grounds. First, he argued that he had labored under a mistaken belief that he was not required to file an answer to the cross-complaint because the copy that had been served upon him was not conformed. Second, he argued that no default judgment could have been properly entered on the cross-complaint given the proscriptions of Code of Civil Procedure section 585, subdivision (e). While he did not articulate his arguments in these precise terms, he plainly argued, with respect to the first ground, that he, as a self-represented litigant, had made a mistake of law. With respect to the second ground, he would seem to have argued that the court was the one that had made a mistake of law. While not phrasing his argument in quite this way, Tello did in essence argue that the court had exceeded its jurisdiction in entering the default judgment on the cross-complaint given the pending complaint.
(3) Tello’s Mistake of Law
As case law shows, relief may be available even when the mistake pertains to a question of law. “Analyzing the claim of mistake of law the court . . . must be guided by settled rules: ‘[A] mistake as to law does not require relief from default as a matter of law. [Citation.] The issue of which mistakes of law constitute excusable neglect presents a fact question . . . .’” (Anderson v. Sherman, supra, 125 Cal.App.3d at p. 238.) Factors bearing upon the determination include “‘the reasonableness of the misconception and the justifiability of lack of determination of the correct law. [Citation.] Although an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief. [Citations.]’ [Citations.]” (Ibid.)
In the matter before us, Tello filed a declaration explaining his ignorance of the law. However, he did not address his failure to ascertain whether in fact the law required an answer to be filed in response to service with an unconformed copy of the cross-complaint. We only know that, as a layman, Tello did not figure it out. At the same time, he did explain his prompt efforts to address the default once it was entered.
The cross-complaint was served on Tello on June 22, 2006. Tredwell and the ISBS Group obtained the entry of default against Tello on August 1, 2006. On August 24, 2006, Tello wrote to counsel for Tredwell and the ISBS Group asking for a stipulation to set aside the default. By letter of September 5, 2006, Tredwell and the ISBS Group, via their counsel, rejected the request. The default judgment was entered September 27, 2006. Less than a month later, on October 19, 2006, Tello filed his motion to vacate. By the date of the hearing on the motion, he had retained counsel to represent him.
While Tello may not have demonstrated paramount effort at the outset, Tredwell and the ISBS Group moved quickly, and Tello responded with appropriate and diligent effort when he realized he may have made an error. In addition, Tello raised an issue that was unrelated to his mistake of law, but of even greater importance—the matter of compliance with Code of Civil Procedure section 585, subdivision (e).
(4) One Judgment Rule
In his motion, Tello argued not only that the court should set aside the default judgment because of his mistake of law, but also that entry of the default judgment contravened Code of Civil Procedure section 585, subdivision (e). That provision states in pertinent part: “If a defendant files a cross-complaint against another defendant or the plaintiff, a default may be entered against that party on that cross-complaint if the plaintiff or that cross-defendant has been served with that cross-complaint and has failed to file an answer, demurrer, notice of motion to strike . . . within the time specified in the summons, or within another time period as may be allowed. However, no judgment may separately be entered on that cross-complaint unless a separate judgment may, in fact, be properly awarded on that cross-complaint and the court finds that a separate judgment on that cross-complaint would not substantially delay the final disposition of the action between the parties.”
Tello, in his motion, emphasized the last sentence of that quoted language. He explained that the “allegations of the Cross-Complaint [went] to the heart of the matter,” he had yet to “properly plead [all the] . . . supporting facts and circumstances,” and that discovery was only in the early stages. He also stated that “entry of the default judgment [would] result in substantial delay of the final disposition of the action between the parties.” (Capitalization omitted.)
Tello was correct that “no judgment [could] separately be entered on that cross-complaint [because] a separate judgment [could not], in fact, be properly awarded on that cross-complaint . . . .” (Code Civ. Proc., § 585, subd. (e).) “‘[T]here is nothing that permits the rendition of two separate judgments where the parties to the complaint and the cross-complaint and the transaction out of which the action arose are identical.’ [Citations.]” (American Nat. Bank v. Stanfill (1988) 205 Cal.App.3d 1089, 1095.) There are several reasons for the one judgment rule. One “reason for the rule is that an ‘action normally proceeds to a single judgment on the issues raised by the complaint and cross-complaint, and there is no need nor right to a separate final judgment on the cross-complaint.’ [Citation.]” (Lemaire v. All City Employees Assn. (1973) 35 Cal.App.3d 106, 110.) Another reason is that “the fragmentation of an action during the pleading and proof stages on the trial level could delay the expeditious handling on the trial level and clog up the appellate courts by piecemeal appeals. The efficient and orderly administration of justice allows the complaint to proceed to final determination on the trial level, unhampered, unimpeded and uninterrupted by possible protracted delays from appeals on a cross-complaint, with the appellate courts receiving decisions from the trial courts which have finally disposed of the whole subject matter of the litigation for one final review on appeal.” (Ibid; accord, American Nat. Bank v. Stanfill, supra, 205 Cal.App.3d at p. 1095.) Furthermore, “‘[w]here the plaintiff recovers on his complaint and the defendant recovers on his cross-complaint, a single net judgment should be rendered.’ [Citation.]” (American Nat. Bank v. Stanfill, supra, 205 Cal.App.3d at p. 1095.)
(5) Conclusion
In determining whether the court abused its discretion in denying Tello’s motion to vacate, we note that “[r]easonableness in view of all the circumstances is equally well established as the test of whether discretion has been abused. [Citations.]” (Anderson v. Sherman, supra, 125 Cal.App.3d at p. 237.) Taking into consideration both Tello’s diligence in pursuing the motion to vacate, and the additional circumstance of the violation of Code of Civil Procedure section 585, subdivision (e), we hold the court abused its discretion in denying his motion to vacate the default judgment.
C. PENDING MOTIONS:
Substantive issues aside, each party criticizes the other for violations of rules of appellate procedure. In their reply brief, Tredwell and the ISBS Group accuse Tello of providing an inaccurate and noncompliant appendix. They say the copy of opposition as contained in the appellant’s appendix is missing more than 100 pages and that the appellant’s appendix does not contain a copy of the court’s January 17, 2007 minute order setting forth its ruling. They represent that Tello refused to correct the errors when they were drawn to his attention and that this necessitated filing of a respondents’ index. Consequently, Tredwell and the ISBS Group request that this court award sanctions against Tello, pursuant to California Rules of Court, rule 8.124(g). The sanctions request is denied.
California Rules of Court, rule 8.124(g) provides: “Filing an appendix constitutes a representation that the appendix consists of accurate copies of documents in the superior court file. The reviewing court may impose monetary or other sanctions for filing an appendix that contains inaccurate copies or otherwise violates this rule.”
Tello takes his turn, stating that some of the documents contained in the respondents’ appendix were filed in the superior court either after the date the notice of appeal was filed or after the date the appellant’s appendix was filed. According to Tello, the documents filed in the superior court after the date the appellant’s appendix was filed were by definition documents that could not have been contained in the appellant’s appendix and therefore were improper documents for inclusion in the respondents’ appendix, under California Rules of Court, former rule 8.124(b)(6), as in effect in 2007. Tello asks that this court disregard those documents. He also asks that this court disregard certain arguments Tredwell and the ISBS Group make related to those documents.
California Rules of Court, former rule 8.124(b)(6) provided: “A respondent’s appendix may contain any document that could have been included in the appellant’s appendix or a joint appendix.” (See now current Cal. Rules of Court, rule 8.124(b)(4).)
Tello, in essence, is making a motion to strike. However, he has failed to file and serve a separate motion, which Tredwell and the ISBS Group would have an opportunity to oppose, pursuant to California Rules of Court, rule 8.54(a). In addition, the items to which he objects are germane to the status of his complaint and whether the one final judgment rule bars the hearing of this appeal. Consequently, since the time Tello made his motion, this court has permitted the augmentation of the record to include several of the items in question. Tello’s motion is denied.
III
DISPOSITION
The order denying the motion to vacate is reversed. The request for sanctions is denied. The motion to strike is denied. Tello shall recover his costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.