Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CV111174.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Richard Conto appeals from an order denying his motion to set aside the default entered against him below and to quash service of summons. The order is not appealable, and we accordingly dismiss the appeal.
STATEMENT OF THE CASE
Plaintiff Patricia A. Jones, as trustee of the Carmel G. Barbano 1995 Revocable Trust, as Amended and Restated on December 21, 2005, filed a complaint against multiple defendants, including Conto. The underlying facts are not relevant to our disposition but it suffices to say that the action factually arose out of a real estate investment gone bad.
Conto’s default was initially entered on June 23, 2008, but the court set that aside after Conto moved for such relief and to quash service of summons. His default was entered again on May 14, 2009. He again moved to set it aside and to quash service of summons, contending that the complaint could not have been properly sub-served at his residence because his entire family was on vacation in Florida at the time and no one was at home. The court denied the motion. The record on appeal does not contain a judgment, by default or otherwise, against Conto. Nor does the superior court’s docket, of which we take judicial notice on our own motion.
The motion was styled as a “motion to set aside default judgment and quash service of summons.” (All caps omitted.)
Conto appeals from the order denying his motion to set aside default and to quash service of summons. Although he contends in his opening brief that the order is appealable under Code of Civil Procedure section 904.1, subdivision (a)(2) as an order made after judgment, it is not because there has been no judgment entered. As Jones points out in her brief, an order denying a motion to set aside a default is not appealable. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981 [no appeal lies from entry of default]; First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960 [same].) Nor is an order denying a motion to quash service of summons. (Code Civ. Proc., § 418.10, subd. (c) [order denying motion to quash service of summons reviewable by writ].)
This appeal would have been properly disposed of by motion to dismiss under rule 8.54 of the California Rules of Court before, and without the need for, briefing.
Because the absence of an appealable order deprives us of jurisdiction to entertain an appeal, we must dismiss this one. We do so only after requesting Conto to show cause why the appeal should not be dismissed and receiving no timely response.
After the allowed period for responding had expired, Conto’s counsel submitted a letter acknowledging that the order is not appealable and correctly anticipating that the appeal will be dismissed as a result.
DISPOSITION
The appeal is hereby dismissed.
WE CONCUR: Rushing, P.J., Duffy, J.